364-DAY BRIDGE TERM LOAN CREDIT AGREEMENT
Dated as of January 17, 2003
among
ENERGIZER HOLDINGS, INC.
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS
BANK ONE, NA,
as Administrative Agent
and
BANK OF AMERICA, N.A.
as Syndication Agent
___________________________________________________________________________
BANC ONE CAPITAL MARKETS, INC.
and
BANC OF AMERICA SECURITIES LLC
as Co-Lead Arrangers and Joint Bookrunners
___________________________________________________________________________
SIDLEY XXXXXX XXXXX & XXXX
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS 1
1.1 Certain Defined Terms 1
1.2 References 22
ARTICLE II: THE BRIDGE TERM LOAN FACILITY 22
2.1 Loans. 22
2.2 Repayment of Loans 22
2.3 Rate Options for all Loans; Maximum Interest Periods 23
2.4 Prepayments. 23
2.5 Reduction of Commitments. 23
2.6 Method of Borrowing 24
2.7 Method of Requesting the Advance 24
2.8 Amount of the Advance 24
2.9 Method of Selecting Types and Interest Periods for
Conversion and Continuation of Loans. 24
2.10 Default Rate 25
2.11 Method of Payment 25
2.12 Evidence of Debt. 26
2.13 Telephonic Notices 26
2.14 Promise to Pay; Interest and Facility Fees; Interest
Payment Dates; Interest and Fee Basis; Loan and Control
Accounts. 27
2.15 Notification of the Advance, Interest Rates,
Prepayments and Aggregate Commitment Reductions 28
2.16 Lending Installations 28
2.17 Non-Receipt of Funds by the Administrative Agent 28
2.18 Termination Date 28
2.19 Replacement of Certain Lenders 29
ARTICLE III: [RESERVED] 30
ARTICLE IV: YIELD PROTECTION; TAXES 30
4.1 Yield Protection 30
4.2 Changes in Capital Adequacy Regulations 30
4.3 Availability of Types of Loans 31
4.4 Funding Indemnification 31
4.5 Taxes. 31
4.6 Lender Statements; Survival of Indemnity 33
ARTICLE V: CONDITIONS PRECEDENT 34
5.1 Funding Date 34
5.2 Closing Date 35
ARTICLE VI: REPRESENTATIONS AND WARRANTIES 35
6.1 Organization; Corporate Powers 36
6.2 Authority. 36
6.3 No Conflict; Governmental Consents for the Borrower 37
6.4 Financial Statements 37
6.5 No Material Adverse Change 37
6.6 Taxes. 38
6.7 Litigation; Loss Contingencies and Violations 38
6.8 Subsidiaries 38
6.9 ERISA 39
6.10 Accuracy of Information 40
6.11 Securities Activities 40
6.12 Material Agreements 40
6.13 Compliance with Laws 40
6.14 Assets and Properties 40
6.15 Statutory Indebtedness Restrictions 41
6.16 Insurance 41
6.17 Labor Matters 41
6.18 Designated Acquisition 41
6.19 Environmental Matters 41
6.20 Solvency 42
6.21 Benefits 42
ARTICLE VII: COVENANTS 42
7.1 Reporting 42
7.2 Affirmative Covenants. 45
7.3 Negative Covenants. 48
7.4 Financial Covenants 55
ARTICLE VIII: DEFAULTS 55
8.1 Defaults 55
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES 58
9.1 Termination of Commitments; Acceleration 58
9.2 Defaulting Lender 59
9.3 Amendments 60
9.4 Preservation of Rights 61
ARTICLE X: GENERAL PROVISIONS 61
10.1 Survival of Representations 61
10.2 Governmental Regulation 61
10.3 Performance of Obligations 61
10.4 Headings 62
10.5 Entire Agreement 62
10.6 Several Obligations; Benefits of this Agreement 62
10.7 Expenses; Indemnification. 62
10.8 Numbers of Documents 64
10.9 Accounting 64
10.10 Severability of Provisions 65
10.11 Nonliability of Lenders 65
10.12 GOVERNING LAW 65
10.13 CONSENT TO JURISDICTION; JURY TRIAL. 65
10.14 Subordination of Intercompany Indebtedness 66
ARTICLE XI: THE ADMINISTRATIVE AGENT 68
11.1 Appointment; Nature of Relationship 68
11.2 Powers 68
11.3 General Immunity 68
11.4 No Responsibility for Loans, Creditworthiness,
Recitals, Etc 68
11.5 Action on Instructions of Lenders 69
11.6 Employment of Administrative Agents and Counsel 69
11.7 Reliance on Documents; Counsel 69
11.8 The Administrative Agent's Reimbursement and
Indemnification 69
11.9 Rights as a Lender 70
11.10 Lender Credit Decision 70
11.11 Successor Administrative Agent 70
11.12 No Duties Imposed Upon Syndication Agent or Arrangers 71
ARTICLE XII: SETOFF; RATABLE PAYMENTS 71
12.1 Setoff 71
12.2 Ratable Payments 71
12.3 Application of Payments 71
12.4 Relations Among Lenders. 72
12.5 Representations and Covenants Among Lenders 72
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 73
13.1 Successors and Assigns 73
13.2 Participations. 73
13.3 Assignments. 74
13.4 Confidentiality 75
13.5 Dissemination of Information 76
ARTICLE XIV: NOTICES 76
14.1 Giving Notice 76
14.2 Change of Address 76
ARTICLE XV: COUNTERPARTS 76
EXHIBITS AND SCHEDULES
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EXHIBIT A Commitments (Definitions)
EXHIBIT B Form of Borrowing/Election Notice (Sections 2.7 and 2.9)
EXHIBIT C Form of Assignment and Acceptance Agreement (Sections 2.19
and 13.3)
EXHIBIT D Form of Borrower's Counsel's Opinion (Section 5.1)
EXHIBIT E Form of Officer's Certificate (Section 7.1(A)(iii))
EXHIBIT F Form of Compliance Certificate (Section 7.1(A)(iii))
EXHIBIT G Form of Supplement to Subsidiary Guaranty (Definitions)
Schedule 1.1.1 Permitted Existing Investments (Definitions)
Schedule 1.1.2 Permitted Existing Liens (Definitions)
Schedule 1.1.3 Permitted Existing Contingent Obligations (Definitions)
Schedule 6.3 Conflicts; Governmental Consents (Section 6.3)
Schedule 6.7 Litigation; Loss Contingencies (Section 6.7)
Schedule 6.8 Subsidiaries (Section 6.8)
Schedule 6.19 Environmental Matters (Section 6.19)
Schedule 7.3(G) Transactions with Shareholders and Affiliates (Section
7.3(G))
364-DAY BRIDGE TERM LOAN CREDIT AGREEMENT
This 364-Day Bridge Term Loan Credit Agreement dated as of January 17, 2003
is entered into among ENERGIZER HOLDINGS, INC., a Missouri corporation, the
institutions from time to time parties hereto as Lenders, whether by execution
of this Agreement or an Assignment Agreement pursuant to Section 13.3, and BANK
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ONE, NA, having its principal office in Chicago, Illinois, in its capacity as
Administrative Agent and BANK OF AMERICA, N.A., as Syndication Agent. The
parties hereto agree as follows:
ARTICLE I: DEFINITIONS
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1.1 Certain Defined Terms. In addition to the terms defined above, the
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following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ACCOUNTING CHANGE" is defined in Section 10.9 hereof.
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"ACQUIRED BUSINESS" is defined in the definition of "Designated Acquisition"
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below.
--
"ACQUISITION" means any transaction, or any series of related transactions,
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consummated on or after the date of this Agreement, by which the Borrower or any
---
of its Subsidiaries (i) acquires any going business or all or substantially all
of the assets of any firm, corporation or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage of voting power) of the outstanding
equity interests of another Person.
"ADMINISTRATIVE AGENT" means Bank One in its capacity as contractual
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representative for itself and the Lenders pursuant to Article XI hereof and any
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successor Administrative Agent appointed pursuant to Article XI hereof.
-----------
"ADVANCE" means the borrowing hereunder made on the Funding Date in accordance
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with Article II and consisting of the aggregate amount of the several Loans made
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by the Lenders to the Borrower.
"AFFECTED LENDER" is defined in Section 2.19 hereof.
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"AFFILIATE" of any Person means any other Person directly or indirectly
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controlling, controlled by or under common control with such Person. A Person
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shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments of all the
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Lenders, as may be reduced from time to time pursuant to the terms hereof. The
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initial Aggregate Commitment is Five Hundred Fifty Million and 00/100 Dollars
($550,000,000.00).
"AGREEMENT" means this 364-Day Bridge Term Loan Credit Agreement, as it may be
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amended, restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting principles
-------------------------------
as in effect in the United States from time to time, applied in a manner
consistent with that used in preparing the financial statements of the Borrower
referred to in Section 6.4 hereof; provided, however, except as provided in
------------ -------- -------
Section 10.9, that with respect to the calculation of financial ratios and other
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financial tests required by this Agreement, "Agreement Accounting Principles"
means generally accepted accounting principles as in effect in the United States
as of the date of this Agreement, applied in a manner consistent with that used
in preparing the financial statements of the Borrower referred to in Section 6.4
-----------
hereof.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of interest per
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annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of
--
(a) the Federal Funds Effective Rate for such day and (b) one-half of one
percent (0.5%) per annum.
"APPLICABLE FACILITY FEE PERCENTAGE" means, as at any date of determination, the
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rate per annum then applicable in the determination of the amount payable under
Section 2.14(C) hereof equal to the "Applicable Facility Fee Percentage" as
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calculated under and defined in the Existing 5- Year Credit Agreement.
"APPLICABLE MARGIN" means, as at any date of determination, the rate per annum
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then applicable to Loans of any Type at such time, equal to the "Applicable
Margin" under and as calculated under and defined in the Existing 5-Year Credit
Agreement.
"ARRANGERS" means Banc One Capital Markets, Inc. and Banc of America Securities
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LLC, in their respective capacities as the co-lead arrangers and joint
bookrunners for the loan transaction evidenced by this Agreement.
"ASSIGNMENT AGREEMENT" means an assignment and acceptance agreement entered into
--------------------
in connection with an assignment by a Lender pursuant to Section 13.3 hereof in
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substantially the form of Exhibit C.
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"ASSET SALE" means, with respect to any Person, the sale, lease, conveyance,
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disposition or other transfer by such Person of any of its assets (including by
--
way of a sale-leaseback transaction, and including the sale or other transfer of
any of the Equity Interests of any Subsidiary of such Person) other than (i) the
sale of Inventory in the ordinary course of business and (ii) the sale or other
disposition of any obsolete manufacturing Equipment disposed of in the ordinary
course of business.
"AUTHORIZED OFFICER" means any of the President, any Vice President (including
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any Executive Vice President), the Chief Financial Officer or the Treasurer of
the Borrower, acting singly.
"BANK OF AMERICA" means Bank of America, N.A., in its individual capacity, and
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its successors.
"BANK ONE" means Bank One, NA, having its principal office in Chicago, Illinois,
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in its individual capacity, and its successors.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35) of ERISA
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(other than a Multiemployer Plan or Foreign Pension Plan) in respect of which
the Borrower or any other member of the Controlled Group is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"BORROWER" means Energizer Holdings, Inc., a Missouri corporation, together with
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its successors and assigns, including a debtor-in-possession on behalf of the
Borrower.
"BORROWING/ELECTION NOTICE" is defined in Section 2.7 hereof.
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"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
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selection of Loans bearing interest at the Eurodollar Rate, a day (other than a
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Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and on which dealings in Dollars are carried on in the London interbank market
and (ii) for all other purposes a day (other than a Saturday or Sunday) on which
banks are open for business in Chicago, Illinois.
"CAPITAL STOCK" means (i) in the case of a corporation, capital stock, (ii) in
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the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited) and (iv) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of property by such Person as
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lessee which would be capitalized on a balance sheet of such Person prepared in
-
accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the obligations
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of such Person under Capitalized Leases which would be capitalized on a balance
sheet of such Person prepared in accordance with Agreement Accounting
Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
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unconditionally guaranteed by the United States government and backed by the
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full faith and credit of the United States government; (ii) domestic and
--
Eurodollar certificates of deposit and time deposits, bankers' acceptances and
--
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies (fully protected against
currency fluctuations for any such deposits with a term of more than ninety (90)
days); (iii) shares of money market, mutual or similar funds having assets in
excess of $100,000,000 and at least 95% of the investments of which are limited
to investment grade securities (i.e., securities rated at least Baa by Xxxxx'x
Investors Service, Inc. or at least BBB by Standard & Poor's Ratings Group); and
(iv) commercial paper of United States and foreign banks and bank holding
companies and their subsidiaries and United States and foreign finance,
commercial industrial or utility companies which, at the time of acquisition,
are rated A-1 (or better) by Standard & Poor's Ratings Group or P-1 by Xxxxx'x
Investors Service, Inc.; provided that the maturities of such Cash Equivalents
described in the foregoing clauses (i) through (iv) shall not exceed 365 days;
(v) repurchase obligations of any commercial bank organized under the laws of
the United States, any state thereof, the District of Columbia, any foreign
bank, or its branches or agencies having a term not more than thirty (30) days,
with respect to securities issued or fully guaranteed or insured by the United
States government; (vi) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth,
territory, political subdivision, taxing authority or by any foreign government,
the securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least
BBB by Standard & Poor's Ratings Group or at least Baa by Xxxxx'x Investors
Service, Inc.; (vii) securities with maturities of one year or less from the
date of acquisition backed by standby letters of credit issued by any commercial
bank organized under the laws of the United States, any state thereof or the
District of Columbia (which commercial bank shall have a short-term debt rating
of A-1 (or better) by Standard & Poor's Ratings Group or P-1 by Xxxxx'x
Investors Service, Inc.), or by any foreign bank (which foreign bank shall have
a rating of B or better from Thomson BankWatch Global Issuer Rating or, if not
rated by Thomson BankWatch Global Issuer Rating, which foreign bank shall be an
institution acceptable to the Administrative Agent), or its branches or
agencies; or (viii) shares of money market mutual or similar funds at least 95%
of the assets of which are invested in the types of investments satisfying the
requirements of clauses (i) through (vii) of this definition.
"CHANGE" is defined in Section 4.2 hereof.
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"CHANGE OF CONTROL" means an event or series of events by which:
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1. any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly
or indirectly, of thirty percent (30%) or more of the voting power of the then
outstanding Capital Stock of the Borrower entitled to vote generally in the
election of the directors of the Borrower;
2. during any period of 12 consecutive calendar months, the board of
directors of the Borrower shall cease to have as a majority of its members
individuals who either:
1. were directors of the Borrower on the first day of such period, or
2. were elected or nominated for election to the board of directors of the
Borrower at the recommendation of or other approval by at least a majority of
the directors then still in office at the time of such election or nomination
who were directors of the Borrower on the first day of such period, or whose
election or nomination for election was so approved;
3. other than as a result of a transaction not prohibited under the terms of
this Agreement, the Borrower (a) shall cease to own, of record and
beneficially, with sole voting and dispositive power, 100% of the outstanding
shares of Capital Stock of each of the Subsidiary Guarantors or (b) shall cease
to have the power, directly or indirectly, to elect all of the members of the
board of directors of each of the Subsidiary Guarantors; or
4. the Borrower consolidates with or merges into another corporation or
conveys, transfers or leases all or substantially all of its property to any
Person, or any corporation consolidates with or merges into the Borrower, in
either event pursuant to a transaction in which the outstanding Capital Stock of
the Borrower is reclassified or changed into or exchanged for cash,
securities or other property.
"CLOSING DATE" means the date of this Agreement.
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"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
----
otherwise modified from time to time.
----
"COMMISSION" means the Securities and Exchange Commission of the United States
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of America and any Person succeeding to the functions thereof.
"COMMITMENT" means, for each Lender, prior to the Funding Date, the obligation
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of such Lender to make Loans not exceeding the amount set forth on Exhibit A to
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this Agreement opposite its name thereon under the heading "Commitment" or in
the Assignment Agreement by which it became a Lender, as such amount may be
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment Agreement.
"CONSOLIDATED ASSETS" means the total assets of the Borrower and its
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Subsidiaries on a consolidated basis.
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"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic substance,
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hazardous waste, special waste, petroleum or petroleum-derived substance or
waste, asbestos or polychlorinated biphenyls ("PCBS"), and includes but is not
limited to these terms as defined in Environmental, Health or Safety
Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any Contractual
----------------------
Obligation, contingent or otherwise, of that Person with respect to any
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Indebtedness of another or other obligation or liability of another, including,
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without limitation, any such Indebtedness, obligation or liability of another
directly or indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business), co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including Contractual Obligations (contingent or
otherwise) arising through any agreement to purchase, repurchase, or otherwise
acquire such Indebtedness, obligation or liability or any security therefor, or
to provide funds for the payment or discharge thereof (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), or to
maintain solvency, assets, level of income, or other financial condition, or to
make payment other than for value received. The amount of any Contingent
Obligation shall be equal to the present value of the portion of the obligation
so guaranteed or otherwise supported, in the case of known recurring
obligations, and the maximum reasonably anticipated liability in respect of the
portion of the obligation so guaranteed or otherwise supported assuming such
Person is required to perform thereunder, in all other cases.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision of any
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equity or debt securities issued by that Person or any indenture, mortgage, deed
of trust, security agreement, pledge agreement, guaranty, contract, undertaking,
agreement or instrument, in any case in writing, to which that Person is a party
or by which it or any of its properties is bound, or to which it or any of its
properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation which is a
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member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Borrower; (ii) a partnership or other trade
or business (whether or not incorporated) which is under common control (within
the meaning of Section 414(c) of the Code) with the Borrower; and (iii) a member
of the same affiliated service group (within the meaning of Section 414(m) of
the Code) as the Borrower, any corporation described in clause (i) above or any
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partnership or trade or business described in clause (ii) above.
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"CURE LOAN" is defined in Section 9.2(iii) hereof.
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"CUSTOMARY PERMITTED LIENS" means:
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1. Liens (other than Environmental Liens and Liens in favor of the IRS or
the PBGC or any Plan) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or (if foreclosure,
distraint, sale or other similar proceedings shall not have been commenced or
any such proceeding after being commenced is stayed) which are being contested
in good faith by appropriate proceedings properly instituted and diligently
conducted and with respect to which adequate reserves or other appropriate
provisions are being maintained as may be required in accordance with Agreement
Accounting Principles;
2. statutory Liens of landlords and Liens of suppliers, mechanics, carriers,
materialmen, warehousemen or workmen and other similar Liens imposed by law
created in the ordinary course of business for amounts not yet due or which are
being contested in good faith by appropriate proceedings properly instituted and
diligently conducted and with respect to which adequate reserves or other
appropriate provisions are being maintained as may be required in accordance
with Agreement Accounting Principles;
3. Liens (other than Environmental Liens and Liens in favor of the IRS or
the PBGC or any Plan) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance or
other types of social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed money),
surety, appeal and performance bonds; provided that (A) all such Liens do not in
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the aggregate materially detract from the value of the Borrower's or such
Subsidiary's assets or property taken as a whole or materially impair the use
thereof in the operation of the Borrower's or such Subsidiary's businesses taken
as a whole, and (B) all Liens securing bonds to stay judgments or in connection
with appeals do not secure at any time an aggregate amount exceeding
$30,000,000;
4. Liens arising with respect to zoning restrictions, easements, licenses,
reservations, covenants, rights-of-way, utility easements, building restrictions
and other similar charges or encumbrances on the use of real property which
do not in any case materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Borrower
or any of its Subsidiaries;
5. Liens of attachment or judgment with respect to judgments, writs or
warrants of attachment, or similar process against the Borrower or any of its
Subsidiaries which do not constitute a Default under Section 8.1(H) hereof;
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6. any interest or title of the lessor in the property subject to any
operating lease entered into by the Borrower or any of its Subsidiaries in the
ordinary course of business; and
7. Liens of commercial depository institutions arising in the ordinary
course of business constituting a statutory or common law right of setoff
against amounts on deposit with any such institution.
"DEFAULT" means an event described in Article VIII hereof.
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"DESIGNATED ACQUISITION" means the acquisition by the Borrower or a Subsidiary
-----------------------
or Subsidiaries of substantially all of the stock or assets constituting a
division of the Seller (the "ACQUIRED BUSINESS") on the terms and conditions set
forth in the Designated Acquisition Agreement.
"DESIGNATED ACQUISITION AGREEMENT" means that certain Stock and Asset Purchase
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Agreement dated on or before March 31, 2003 by and between the Borrower and the
Seller.
"DISCLOSED LITIGATION" is defined in Section 6.7 hereof.
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"DISQUALIFIED STOCK" means any preferred stock and any Capital Stock that, by
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its terms (or by the terms of any security into which it is convertible or for
-
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is 91 days after the Termination Date.
"DOL" means the United States Department of Labor and any Person succeeding to
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the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United States.
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"EBIT" means, for any period, on a consolidated basis for the Borrower and its
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Subsidiaries, the sum of the amounts for such period, without duplication, of
(i) Net Income, plus (ii) Interest Expense to the extent deducted in computing
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Net Income, plus (iii) charges against income for foreign, federal, state and
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local taxes to the extent deducted in computing Net Income, minus (iv)
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extraordinary gains to the extent added in computing Net Income, plus (v) other
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extraordinary non-cash charges to the extent deducted in computing Net Income,
plus (vi) one-time non-cash charges relating to the portion of the purchase
---
price for the Designated Acquisition allocated to inventory, which charges shall
---
be incurred no later than December 31, 2003.
"EBITDA" means, for any period, on a consolidated basis for the Borrower and its
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Subsidiaries, the sum of the amounts for such period, without duplication, of
(i) EBIT, plus (ii) depreciation expense to the extent deducted in computing Net
----
Income, plus (iii) amortization expense, including, without limitation,
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amortization of goodwill and other intangible assets, to the extent deducted in
computing Net Income.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all applicable
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foreign, federal, state and local laws or regulations relating to or addressing
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pollution or protection of the environment, or protection of worker health or
safety, including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 et seq., the Occupational
-- ---
Safety and Health Act of 1970, 29 U.S.C. 651 et seq., and the Resource
-- ---
Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq., in each case
-- ---
including any amendments thereto, any successor statutes, and any regulations
promulgated thereunder, and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental Authority for (a)
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any liability under Environmental, Health or Safety Requirements of Law, or (b)
damages arising from, or costs incurred by such Governmental Authority in
response to, a Release or threatened Release of a Contaminant into the
environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement of law
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that conditions, restricts, prohibits or requires any notification or disclosure
-
triggered by the closure of any property or the transfer, sale or lease of any
property or deed or title for any property for environmental reasons, including,
but not limited to, any so-called "Industrial Site Recovery Act" or "Responsible
Property Transfer Act."
"EQUIPMENT" means all of the Borrower's and its Subsidiaries' present and future
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(i) equipment, including, without limitation, machinery, manufacturing,
distribution, selling, data processing and office equipment, assembly systems,
tools, molds, dies, fixtures, appliances, furniture, furnishings, vehicles,
vessels, aircraft, aircraft engines, and trade fixtures, (ii) other tangible
personal property (other than the Borrower's or Subsidiary's Inventory), and
(iii) any and all accessions, parts and appurtenances attached to any of the
foregoing or used in connection therewith, and any substitutions therefor and
replacements, products and proceeds thereof.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other rights
----------------
to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
-----
from time to time, including (unless the context otherwise requires) any rules
-
or regulations promulgated thereunder.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Rate Loan for the
----------------------
relevant Interest Period, the applicable British Bankers' Association Interest
--
Settlement Rate for deposits in U.S. dollars appearing on Bloomberg Screen BBAM
as of 11:00 a.m. (London time) two (2) Business Days prior to the first day of
such Interest Period, and having a maturity equal to such Interest Period,
provided that, (i) if Bloomberg Screen BBAM is not available to the
---
Administrative Agent for any reason, the applicable Eurodollar Base Rate for the
---
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as reported by
any other generally recognized financial information service mutually acceptable
to the Borrower and the Administrative Agent as of 11:00 a.m. (London time) two
(2) Business Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period, and (ii) if no such British Bankers'
Association Interest Settlement Rate is available to the Administrative Agent,
the applicable Eurodollar Base Rate for the relevant Interest Period shall
instead be the rate determined by the Administrative Agent to be the arithmetic
mean (rounded upward, if necessary, to an integral multiple of 1/16th of 1%) of
the rates of interest per annum reported to the Administrative Agent by each
Reference Lender as the rate at which such Reference Lender offers to place
deposits in Dollars with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period, in the approximate amount of such Reference
Lender's relevant Eurodollar Rate Loan and having a maturity equal to such
Interest Period. If any Reference Lender fails to provide such quotation to the
Administrative Agent, then the Administrative Agent shall determine the
Eurodollar Base Rate on the basis of the quotations of the remaining Reference
Lender(s).
"EURODOLLAR RATE" means, with respect to a Eurodollar Rate Loan for the relevant
---------------
Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate
applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period plus
----
(ii) the then Applicable Margin plus (iii) at all times from and after the 180th
----
day following the Closing Date, 0.50% (the "SUPPLEMENTAL MARGIN"); provided,
--------
however, that the foregoing adjustment for Reserve Requirements shall only be
----
made with respect to that portion of a Eurodollar Rate Loan made by a Lender
which is subject to such Reserve Requirements.
"EURODOLLAR RATE LOAN" means a Loan, or portion thereof, which bears interest at
--------------------
the Eurodollar Rate.
"EXCLUDED TAXES" means, in the case of each Lender or applicable Lending
---------------
Installation and the Administrative Agent, taxes imposed on its overall net
------
income, and franchise taxes imposed on it, by (i) the jurisdiction under the
---
laws of which such Lender or the Administrative Agent is incorporated or
--
organized or (ii) the jurisdiction in which the Administrative Agent's or such
--
Lender's principal executive office or such Lender's applicable Lending
Installation is located.
"EXISTING CREDIT AGREEMENTS" means, collectively, the Existing 5-Year Credit
----------------------------
Agreement and the Existing 364-Day Credit Agreement.
--
"EXISTING 5-YEAR CREDIT AGREEMENT" means that certain 5-Year Revolving Credit
-----------------------------------
Agreement, dated as of March 30, 2000, among the Borrower, the institutions from
-
time to time parties thereto as lenders, Bank One, as the administrative agent,
Bank of America, as the syndication agent, and Wachovia Bank, National
Association (formerly known as Wachovia Bank, N.A.), as the documentation agent,
as the same may be amended, restated, supplemented or otherwise modified from
time to time.
"EXISTING 364-DAY CREDIT AGREEMENT" means that certain 364-Day Credit Agreement,
---------------------------------
dated as of March 30, 2000, among the Borrower, the institutions from time to
time parties thereto as lenders, Bank One, as the administrative agent, Bank of
America, as the syndication agent, and Wachovia Bank, National Association
(formerly known as Wachovia Bank, N.A.), as the documentation agent, as the same
has been amended pursuant to the Amendment and Restatement of 364-Day Credit
Agreement dated as of March 29, 2001 and by the Second Amendment and Restatement
of 364-Day Credit Agreement dated as of March 28, 2002, and as the same may be
further amended, restated, supplemented or otherwise modified from time to time.
"FACILITY FEE" is defined in Section 2.14(C) hereof.
------------- ----------------
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per annum
-------------------------------
equal to the weighted average of the rates on overnight Federal funds
-
transactions with members of the Federal Reserve System arranged by Federal
-
funds brokers on such day, as published for such day (or, if such day is not a
-
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its reasonable discretion.
"FINANCING" means, with respect to any Person, the issuance or sale by such
---------
Person of any Disqualified Stock, Equity Interests of such Person or any
---
Indebtedness consisting of debt securities (including, without limitation, any
---
syndicated loan other than the Loans made hereunder) of such Person; provided,
--------
that such term shall not include (i) any borrowings or proceeds under the
Borrower's Existing Credit Agreements or Receivables Purchase Documents, (ii)
any borrowings by any Subsidiaries incorporated under the laws of any foreign
jurisdiction or (iii) any borrowings under the Borrower's existing money market
lines of credit.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears interest by
--------------------
reference to the Alternate Base Rate.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as defined in
--------------------------------
Section 3(3) of ERISA which is maintained or contributed to for the benefit of
-
the employees of the Borrower or any member of the Controlled Group, but which
is not covered by ERISA pursuant to Section 4(b)(4) of ERISA.
"FOREIGN PENSION PLAN" means any employee pension benefit plan (as defined in
----------------------
Section 3(2) of ERISA) which (i) is maintained or contributed to for the benefit
-
of employees of the Borrower or any other member of the Controlled Group, (ii)
is not covered by ERISA pursuant to Section 4(b)(4) thereof and (iii) under
applicable local law, is required to be funded through a trust or other funding
vehicle.
"FUNDING DATE" means the date on which the Loans are advanced hereunder, subject
------------
to the satisfaction of the terms and conditions set forth in Section 5.1.
-----------
"GOVERNMENTAL ACTS" is defined in Section 3.10(A) hereof.
------------------ ----------------
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal, state,
-----------------------
local or other political subdivision thereof and any entity exercising
--
executive, legislative, judicial, regulatory or administrative authority or
--
functions of or pertaining to government, including any authority or other
--
quasi-governmental entity established to perform any of such functions.
--
"HEDGING ARRANGEMENTS" is defined in the definition of "Hedging Obligations"
---------------------
below.
--
"HEDGING AGREEMENTS" means Hedging Arrangements permitted under Section 7.3(O)
------------------- --------------
that are entered into by the Borrower and any Lender or any affiliate of any
Lender.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such Person,
--------------------
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, commodity prices, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange transactions,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants or any similar derivative transactions ("HEDGING
ARRANGEMENTS"), and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing.
"HOLDERS OF OBLIGATIONS" means the holders of the Obligations from time to time
-----------------------
and shall include their respective successors, transferees and assigns.
"INDEBTEDNESS" of any Person means, without duplication, such Person's (a)
------------
obligations for borrowed money, (b) obligations representing the deferred
----
purchase price of property or services (other than accounts payable arising in
----
the ordinary course of such Person's business payable on terms customary in the
trade), which purchase price is due more than six (6) months from the date of
incurrence of the obligation in respect thereof, provided that the related
obligations are not interest bearing, (c) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from property or
assets now or hereafter owned or acquired by such Person, (d) obligations which
are evidenced by notes, acceptances or other instruments, (e) Capitalized Lease
Obligations, (f) Contingent Obligations in respect of Indebtedness, (g)
obligations with respect to letters of credit, (h) Off-Balance Sheet
Liabilities, (i) Receivables Facility Attributed Indebtedness and (j)
Disqualified Stock. The amount of Indebtedness of any Person at any date shall
be without duplication (1) the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability of any
such Contingent Obligations at such date and (2) in the case of Indebtedness of
others secured by a Lien to which the property or assets owned or held by such
Person is subject, the lesser of the fair market value at such date of any asset
subject to a Lien securing the Indebtedness of others and the amount of the
Indebtedness secured.
"INDEMNIFIED MATTERS" is defined in Section 10.7(B) hereof.
-------------------- ----------------
"INDEMNITEES" is defined in Section 10.7(B) hereof.
----------- ----------------
"INSOLVENCY EVENT" is defined in Section 10.14 hereof.
----------------- --------------
"INTERCOMPANY INDEBTEDNESS" is defined in Section 10.14 hereof.
-------------------------- --------------
"INTEREST EXPENSE" means, for any period, the total interest expense of the
-----------------
Borrower and its consolidated Subsidiaries, whether paid or accrued, including,
---
without duplication, Off-Balance Sheet Liabilities (including Receivables
Facility Financing Costs) and the interest component of Capitalized Leases, all
as determined in conformity with Agreement Accounting Principles.
"INTEREST EXPENSE COVERAGE RATIO" is defined in Section 7.4(B) hereof.
---------------------------------- ---------------
"INTEREST PERIOD" means, with respect to a Eurodollar Rate Loan, a period of one
---------------
(1), two (2), three (3) or six (6) months commencing on a Business Day selected
by the Borrower on which a Eurodollar Rate Loan is made to Borrower pursuant to
this Agreement. Such Interest Period shall end on (but exclude) the day which
corresponds numerically to such date one, two, three or six months thereafter;
provided, however, that if there is no such numerically corresponding day in
------- -------
such next, second, third or sixth succeeding month, such Interest Period shall
--
end on the last Business Day of such next, second, third or sixth succeeding
month. If an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding Business
Day, provided, however, that if said next succeeding Business Day falls in a new
-------- -------
calendar month, such Interest Period shall end on the immediately preceding
Business Day.
"INVENTORY" shall mean any and all goods, including, without limitation, goods
---------
in transit, wheresoever located, whether now owned or hereafter acquired by the
Borrower or any of its Subsidiaries, which are held for sale or lease, furnished
under any contract of service or held as raw materials, work in process or
supplies, and all materials used or consumed in the business of Borrower or any
of its Subsidiaries, and shall include all right, title and interest of the
Borrower or any of its Subsidiaries in any property the sale or other
disposition of which has given rise to Receivables and which has been returned
to or repossessed or stopped in transit by the Borrower or any of its
Subsidiaries.
"INVESTMENT" means, with respect to any Person, (i) any purchase or other
----------
acquisition by that Person of any Indebtedness, Equity Interests or other
-----
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
-----
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business conducted by another
Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to the
---
functions thereof.
---
"LENDERS" means the lending institutions listed on the signature pages of this
-------
Agreement and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the Administrative
---------------------
Agent, any office, branch, subsidiary or affiliate of such Lender or the
--
Administrative Agent.
--
"LEVERAGE RATIO" is defined in Section 7.4(A) hereof.
--------------- ---------------
"LIEN" means any lien (statutory or other), mortgage, pledge, hypothecation,
----
assignment, deposit arrangement, encumbrance or preference, priority or security
--
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of the Advance
-------
consisting of a bridge term loan made pursuant to Section 2.1 hereof, and
-----------
collectively, all Loans, whether made or continued as or converted to Floating
Rate Loans or Eurodollar Rate Loans.
"LOAN ACCOUNT" is defined in Section 2.12(a) hereof.
------------- ----------------
"LOAN DOCUMENTS" means this Agreement, the Subsidiary Guaranty, any promissory
---------------
notes issued pursuant to Section 2.12 and all other documents, instruments and
------------
agreements executed in connection therewith or contemplated thereby, as the same
may be amended, restated or otherwise modified and in effect from time to time.
"LOAN PARTIES" is defined in Section 5.1 hereof.
------------- ------------
"MARGIN STOCK" shall have the meaning ascribed to such term in Regulation U.
-------------
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the business,
-----------------------
condition (financial or otherwise), operations, performance, properties or
prospects of the Borrower and its Subsidiaries, taken as a whole, (b) the
ability of the Borrower and its Subsidiaries, taken as a whole, to perform their
obligations under the Loan Documents in any material respect, or (c) the ability
of the Lenders or the Administrative Agent to enforce in any material respect
the Obligations.
"MATERIAL DOMESTIC SUBSIDIARY" means each consolidated Subsidiary (other than
------------------------------
any SPV) of the Borrower (a) incorporated under the laws of any jurisdiction in
-
the United States and (b) the total assets of which exceed, as at the end of any
calendar quarter or, in the case of consummation of a Permitted Acquisition, at
the time of consummation of such Permitted Acquisition (calculated by the
Borrower on a pro forma basis taking into account the consummation of such
--- -----
Permitted Acquisition), three percent (3.0%) of the Consolidated Assets of the
Borrower and its consolidated Subsidiaries (other than SPVs).
"MATERIAL FOREIGN SUBSIDIARY" means each consolidated Subsidiary (other than any
---------------------------
SPV) of the Borrower (a) incorporated under the laws of any foreign jurisdiction
and (b) the total assets of which exceed, as at the end of any calendar quarter
or, in the case of consummation of a Permitted Acquisition, at the time of
consummation of such Permitted Acquisition (calculated by the Borrower on a pro
---
forma basis taking into account the consummation of such Permitted Acquisition),
-----
five percent (5.0%) of the Consolidated Assets of the Borrower and its
consolidated Subsidiaries (other than SPVs).
"MATERIAL INDEBTEDNESS" means any Indebtedness (other than the Indebtedness
----------------------
hereunder) of a single class with an aggregate outstanding principal amount
---
equal to or greater than $30,000,000.
---
"MATERIAL SUBSIDIARIES" means each of the Borrower's Material Domestic
----------------------
Subsidiaries and Material Foreign Subsidiaries.
--------
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
-------------------
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
-------
was, contributed to by either the Borrower or any member of the Controlled
Group.
"NET CASH PROCEEDS" means, with respect to any Financing by any Person, (a)
-------------------
cash or Cash Equivalents (freely convertible into Dollars) received by such
--
Person or any Subsidiary of such Person from such Financing or (b) cash or Cash
--
Equivalents payments in respect of any other consideration received by such
Person or any Subsidiary of such Person from such Financing upon receipt of such
cash payments by such Person or such Subsidiary, in each case, after (i)
provision for all income or other taxes measured by or resulting from such
Financing and (ii) payment of all brokerage commissions and other fees and
expenses and commissions related to such Financing.
"NET INCOME" means, for any period, the net earnings (or loss) after taxes of
-----------
the Borrower and its Subsidiaries on a consolidated basis for such period taken
-
as a single accounting period determined in conformity with Agreement Accounting
Principles.
"NEW SUBSIDIARY" is defined in Section 7.3(F).
--------------- ---------------
"NON-ERISA COMMITMENTS" means
----------------------
1. each pension, medical, dental, life, accident insurance, disability,
group insurance, sick leave, profit sharing, deferred compensation, bonus, stock
option, stock purchase, retirement, savings, severance, stock ownership,
performance, incentive, hospitalization or other insurance, or other welfare,
benefit or fringe benefit plan, policy, trust, understanding or arrangement of
any kind; and
2. each employee collective bargaining agreement and each agreement,
understanding or arrangement of any kind, with or for the benefit of any
present or prior officer, director, employee or consultant (including, without
limitation, each employment, compensation, deferred compensation, severance or
consulting agreement or arrangement and any agreement or arrangement associated
with a change in ownership of the Borrower or any member of the Controlled
Group);
to which the Borrower or any member of the Controlled Group is a party or with
respect to which the Borrower or any member of the Controlled Group is or will
be required to make any payment other than any Plans.
"NON PRO RATA LOAN" is defined in Section 9.2 hereof.
-------------------- ------------
"NON-U.S. LENDER" is defined in Section 4.5(iv) hereof.
---------------- ----------------
"NOTE PURCHASE AGREEMENT" means that certain Note Purchase Agreement dated as of
-----------------------
April 1, 2000 among the Borrower and the "Purchasers" referred to therein, under
which the Borrower has issued senior unsecured notes in the aggregate principal
amount of $175,000,000 (the "SENIOR NOTES"), which shall be pari passu with the
Obligations hereunder, as such Note Purchase Agreement may be amended, modified
or supplemented from time to time in a manner that is not materially adverse to
the interests of the Lenders.
"NOTICE OF ASSIGNMENT" is defined in Section 13.3(B) hereof.
---------------------- ----------------
"OBLIGATIONS" means all Loans, advances, debts, liabilities, obligations,
-----------
covenants and duties owing by the Borrower or any of its Subsidiaries to the
-----
Administrative Agent, the Syndication Agent, any Lender, the Arrangers, any
--
Affiliate of the Administrative Agent or any Lender, or any Indemnitee, of any
--
kind or nature, present or future, arising under this Agreement or any other
Loan Document, whether or not evidenced by any note, guaranty or other
instrument, whether or not for the payment of money, whether arising by reason
of an extension of credit, loan, guaranty, indemnification, or in any other
manner, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and however acquired. The term includes, without limitation, all interest,
charges, expenses, fees, reasonable attorneys' fees and disbursements,
reasonable paralegals' fees (and, after the occurrence and during the
continuance of a Default, all attorney's fees and disbursements and paralegals'
fees, whether or not reasonable), and any other sum chargeable to the Borrower
or any of its Subsidiaries under this Agreement or any other Loan Document.
"OFF-BALANCE SHEET LIABILITIES" of a Person means, without duplication, (a) any
------------------------------
Receivables Facility Attributed Indebtedness and repurchase obligation or
liability of such Person or any of its Subsidiaries with respect to Receivables
or notes receivable sold by such Person or any of its Subsidiaries (calculated
to include the unrecovered investment of purchasers or transferees of
Receivables or notes receivable or any other obligation of the Borrower or such
transferor to purchasers/transferees of interests in Receivables or notes
receivables or the agent for such purchasers/transferees), (b) any liability
under any sale and leaseback transactions which do not create a liability on the
consolidated balance sheet of such Person, (c) any liability under any financing
lease or so-called "synthetic" lease transaction, or (d) any obligations arising
with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the
consolidated balance sheets of such Person and its Subsidiaries.
"ORIGINATORS" means the Borrower and/or any of its Subsidiaries in their
-----------
respective capacities as parties to any Receivables Purchase Documents, as
------
sellers or transferors of any Receivables and Related Security in connection
----
with a Permitted Receivables Transfer.
--
"OTHER TAXES" is defined in Section 4.5 hereof.
------------ ------------
"PARTICIPANTS" is defined in Section 13.2(A) hereof.
------------ ----------------
"PAYMENT DATE" means the last day of each March, June, September, December and
-------------
the Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor thereto.
----
"PERMITTED ACQUISITION" is defined in Section 7.3(F) hereof.
---------------------- ---------------
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent Obligations of
------------------------------------------
the Borrower and its Subsidiaries identified on Schedule 1.1.3 to this
---------------
Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Borrower and its
--------------------------------
Subsidiaries identified on Schedule 1.1.1 to this Agreement.
---------------
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrower and its
--------------------------
Subsidiaries identified on Schedule 1.1.2 to this Agreement.
-- ---------------
"PERMITTED RECEIVABLES TRANSFER" means (i) a sale or other transfer by an
--------------------------------
Originator to a SPV of Receivables and Related Security for fair market value
-----
and without recourse (except for limited recourse typical of such structured
-
finance transactions), and/or (ii) a sale or other transfer by a SPV to (a)
-
purchasers of or other investors in such Receivables and Related Security or (b)
-
any other Person (including a SPV) in a transaction in which purchasers or other
investors purchase or are otherwise transferred such Receivables and Related
Security, in each case pursuant to and in accordance with the terms of the
Receivables Purchase Documents.
"PERSON" means any individual, corporation, firm, enterprise, partnership,
------
trust, incorporated or unincorporated association, joint venture, joint stock
----
company, limited liability company or other entity of any kind, or any
-
government or political subdivision or any agency, department or instrumentality
-
thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA in
----
respect of which the Borrower or any member of the Controlled Group is, or
----
within the immediately preceding six (6) years was, an "employer" as defined in
----
Section 3(5) of ERISA.
"PRIME RATE" means a rate per annum equal to the prime rate of interest
-----------
announced from time to time by Bank One or its parent (which is not necessarily
-------
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"PRO RATA SHARE" means, prior to the Funding Date, with respect to any Lender,
----------------
the percentage obtained by dividing (A) such Lender's Commitment at such time
(in each case, as adjusted from time to time in accordance with the provisions
of this Agreement) by (B) the Aggregate Commitment at such time; provided,
--------
however, from and after the Funding Date or if all of the Commitments are
--
terminated pursuant to the terms of this Agreement, then "Pro Rata Share" means
-
the percentage obtained by dividing (x) the aggregate principal balance of such
Lender's Loans at such time, by (y) the aggregate outstanding balance of all
Loans at such time.
"PURCHASERS" is defined in Section 13.3(A) hereof.
---------- ----------------
"RECEIVABLE(S)" means and includes all of the Borrower's and its Subsidiaries'
-------------
presently existing and hereafter arising or acquired accounts, accounts
receivable, and all present and future rights of the Borrower and its
Subsidiaries to payment for goods sold or leased or for services rendered
(except those evidenced by instruments or chattel paper), whether or not they
have been earned by performance, and all rights in any merchandise or goods
which any of the same may represent, and all rights, title, security and
guaranties with respect to each of the foregoing, including, without limitation,
any right of stoppage in transit.
"RECEIVABLES AND RELATED SECURITY" means the Receivables and the related
-----------------------------------
security and collections with respect thereto which are sold or transferred by
------
any Originator or SPV in connection with any Permitted Receivables Transfer.
"RECEIVABLES FACILITY ATTRIBUTED INDEBTEDNESS" means the amount of obligations
----------------------------------------------
outstanding under a receivables purchase facility on any date of determination
that would be characterized as principal if such facility were structured as a
secured lending transaction rather than as a purchase.
"RECEIVABLES FACILITY FINANCING COSTS" means such portion of the cash fees,
---------------------------------------
service charges, and other costs, as well as all collections or other amounts
---
retained by purchasers of receivables pursuant to a receivables purchase
-
facility, which are in excess of amounts paid to the Borrower and its
-
consolidated Subsidiaries under any receivables purchase facility for the
-
purchase of receivables pursuant to such facility and are the equivalent of the
-
interest component of the financing if the transaction were characterized as an
on-balance sheet transaction.
"RECEIVABLES PURCHASE DOCUMENTS" means the Receivables Sale Agreement, dated as
-------------------------------
of April 4, 2000, between Eveready Battery Company, Inc. (a Subsidiary of the
Borrower) and Energizer Receivables Funding Corporation (an SPV), and any other
series of receivables purchase or sale agreements generally consistent with
terms contained in comparable structured finance transactions pursuant to which
an Originator or Originators sell or transfer to SPVs all of their respective
right, title and interest in and to certain Receivables and Related Security
for further sale or transfer to other purchasers of or investors in such assets
(and the other documents, instruments and agreements executed in connection
therewith), as any such agreements may be amended, restated, supplemented or
otherwise modified from time to time, or any replacement or substitution
therefor.
"RECEIVABLES PURCHASE FACILITY" means the securitization facility made available
-----------------------------
to the Borrower, pursuant to which the Receivables and Related Security of the
Originators are transferred to one or more SPVs, and thereafter to certain
investors, pursuant to the terms and conditions of the Receivables Purchase
Documents.
"REFERENCE LENDERS" means Bank One and Bank of America.
------------------
"REGISTER" is defined in Section 13.3(C) hereof.
-------- ----------------
"REGULATION D" means Regulation D of the Board of Governors of the Federal
-------------
Reserve System as from time to time in effect and any successor thereto or other
----
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"REGULATION T" means Regulation T of the Board of Governors of the Federal
-------------
Reserve System as from time to time in effect and any successor or other
----
regulation or official interpretation of said Board of Governors relating to the
----
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the Federal
-------------
Reserve System as from time to time in effect and any successor or other
----
regulation or official interpretation of said Board of Governors relating to the
----
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the Federal
-------------
Reserve System as from time to time in effect and any successor or other
----
regulation or official interpretation of said Board of Governors relating to the
----
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"RELEASE" means any release, spill, emission, leaking, pumping, injection,
-------
deposit, disposal, discharge, dispersal, leaching or migration into the
----
environment, including the movement of Contaminants through or in the air, soil,
----
surface water or groundwater.
"RELEVANT TRANSACTION DOCUMENTS" means, (i) as of the Closing Date, the Loan
--------------------------------
Documents and (ii) from and after the Funding Date, all Transaction Documents.
--
"REPLACEMENT LENDER" is defined in Section 2.19 hereof.
------------------- -------------
"REPORTABLE EVENT" means a reportable event as defined in Section 4043 of ERISA
-----------------
and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within thirty (30)
days after such event occurs.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the aggregate, are
-----------------
greater than fifty percent (50%); provided, however, that, if any Lender shall
-------- -------
have failed to fund its Pro Rata Share of the Advance, which such Lender is
obligated to fund under the terms of this Agreement and any such failure has not
been cured, then for so long as such failure continues, "REQUIRED LENDERS" means
Lenders (excluding all Lenders whose failure to fund their respective Pro Rata
Shares of such Loans has not been so cured) whose Pro Rata Shares represent
greater than fifty percent (50%) of the aggregate Pro Rata Shares of such
Lenders; provided further, however, that, from and after the Funding Date or if
-------- ------- -------
the Commitments have been terminated pursuant to the terms of this Agreement,
"REQUIRED LENDERS" means Lenders (without regard to such Lenders' performance of
their respective obligations hereunder) whose aggregate ratable shares (stated
as a percentage) of the aggregate outstanding principal balance of all Loans are
greater than fifty percent (50%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws or other
--------------------
organizational or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject including,
without limitation, the Securities Act of 1933, the Securities Exchange Act of
1934, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act, Regulations T, U and X,
ERISA, the Fair Labor Standards Act, the Worker Adjustment and Retraining
Notification Act, Americans with Disabilities Act of 1990, and any certificate
of occupancy, zoning ordinance, building, environmental or land use requirement
or permit or environmental, labor, employment, occupational safety or health
law, rule or regulation, including Environmental, Health or Safety Requirements
of Law.
"RESERVE REQUIREMENT" means, with respect to an Interest Period, the maximum
--------------------
aggregate reserve requirement (including all basic, supplemental, marginal and
--
other reserves) which is imposed under Regulation D on "Eurocurrency
liabilities".
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 4.2 hereof.
------------------------------- ------------
"SELLER" means Pfizer Inc., a Delaware corporation.
------
"SENIOR MANAGEMENT TEAM" means each Authorized Officer and the Chief Executive
------------------------
Officer of the Borrower.
"SENIOR NOTES" is defined in the definition of "Note Purchase Agreement" above.
-------------
"SOLVENT" means, when used with respect to any Person, that at the time of
-------
determination:
----
1. the fair value of its assets (both at fair valuation and at present fair
saleable value) is equal to or in excess of the total amount of its liabilities,
including, without limitation, contingent liabilities; and
2. it is then able and believes that it will be able to pay its debts as
they mature; and
3. it has capital sufficient to carry on its business as conducted and as
proposed to be conducted.
With respect to contingent liabilities (such as litigation and guarantees), such
liabilities shall be computed at the amount which, in light of all the facts and
circumstances existing at the time, represent the amount which can be reasonably
be expected to become an actual or matured liability.
"SPV" means any special purpose entity established for the purpose of
---
purchasing receivables in connection with a receivables securitization
transaction permitted under the terms of this Agreement.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
----------
outstanding securities having ordinary voting power of which shall at the time
-------
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
means a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTORS" means (i) all of the Borrower's Material Domestic
----------------------
Subsidiaries; (ii) all New Subsidiaries which are Material Domestic Subsidiaries
-----
and which have satisfied the provisions of Section 7.2(K)(a); (iii) all of the
-----------------
Borrower's Subsidiaries which become Material Domestic Subsidiaries and which
have satisfied the provisions of Section 7.2(K)(b); and (iv) all other
------------------
Subsidiaries which become Subsidiary Guarantors in satisfaction of the
provisions of Section 7.2(K)(c), in each case with respect to clauses (i)
------------------ -----------
through (iv) above, other than the SPVs and together with their respective
----
successors and assigns.
"SUBSIDIARY GUARANTY" means that certain Guaranty dated as of the Closing Date,
--------------------
executed by the Subsidiary Guarantors in favor of the Administrative Agent, for
the ratable benefit of the Lenders, as it may be amended, modified, supplemented
and/or restated (including to add new Subsidiary Guarantors), and as in effect
from time to time.
"SUPPLEMENT" shall have the meaning set forth in Section 7.2(K).
---------- ---------------
"SUPPLEMENTAL MARGIN" is defined in the definition of "Eurodollar Rate" above.
--------------------
"SYNDICATION AGENT" means Bank of America and its successors.
------------------
"TAXES" means any and all present or future taxes, duties, levies, imposts,
-----
deductions, charges or withholdings, and any and all liabilities with respect to
---
the foregoing, but excluding Excluded Taxes.
"TERMINATION DATE" means the earliest to occur of (a) January 16, 2004, (b) the
-----------------
date of termination in whole of the Aggregate Commitment pursuant to Section 2.5
-----------
or Section 9.1 hereof and (c) if the Designated Acquisition has not occurred
------------
prior thereto, April 1, 2003.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any Benefit
------------------
Plan; (ii) the withdrawal of the Borrower or any member of the Controlled Group
--
from a Benefit Plan during a plan year in which the Borrower or such Controlled
Group member was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA with respect to such plan; (iii) the imposition of an obligation under
Section 4041 of ERISA to provide affected parties written notice of intent to
terminate a Benefit Plan in a distress termination described in Section 4041(c)
of ERISA; (iv) the institution by the PBGC or any foreign governmental authority
of proceedings to terminate or appoint a trustee to administer a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of the Borrower or any member of the Controlled Group from a
Multiemployer Plan.
"TRANSACTION DOCUMENTS" means the Loan Documents and the documents executed and
----------------------
delivered by the Borrower or any of its Subsidiaries in connection with the
Designated Acquisition including, without limitation, the Designated Acquisition
Agreement.
"TRANSACTIONS" means this Agreement (and the financing transactions evidenced by
------------
the Loan Documents) and the Designated Acquisition.
"TRANSFEREE" is defined in Section 13.5 hereof.
---------- -------------
"TYPE" means, with respect to any Loan, its nature as a Floating Rate Loan or a
----
Eurodollar Rate Loan.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or the
------------------
giving of notice, or both, would constitute a Default.
----
The foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms. Any accounting terms used in this Agreement
which are not specifically defined herein shall have the meanings customarily
given them in accordance with generally accepted accounting principles in
existence as of the date hereof.
1.2 References. Any references to Subsidiaries of the Borrower shall not in
----------
any way be construed as consent by the Administrative Agent or any Lender
to the establishment, maintenance or acquisition of any Subsidiary, except as
may otherwise be permitted hereunder.
ARTICLE II: THE BRIDGE TERM LOAN FACILITY
---------------------------------
2.1 Loans.
-----
(a) Upon the satisfaction of the conditions precedent set forth in Section
-------
5.1 each Lender severally and not jointly agrees, on the terms and conditions
--
set forth in this Agreement, to make a bridge term loan, consisting of a single
-
draw, on the Funding Date, in Dollars, to the Borrower in an aggregate amount
equal to such Lender's Pro Rata Share of the Aggregate Commitment.
Notwithstanding the foregoing, on the earlier of the Funding Date (after giving
effect to the foregoing draw) and April 1, 2003, the Aggregate Commitment and
each Lender's Commitment shall be automatically and permanently terminated to
the extent of the undrawn Aggregate Commitment, as more specifically described
in Section 2.5(b). The Loans made on the Funding Date shall initially be
---------------
Floating Rate Loans and thereafter may be continued as Floating Rate Loans or,
---
on or after three (3) Business Days after the Funding Date, converted into
Eurodollar Rate Loans in the manner provided in Section 2.9. Each Loan under
-----------
this Section 2.1 shall consist of Loans made by each Lender ratably in
------------
proportion to such Lender's respective Pro Rata Share. No Loan shall be
----
reborrowed once repaid.
--
(b) Borrowing/Election Notice. The Borrower shall deliver to the
--------------------------
Administrative Agent a Borrowing/Election Notice, signed by it, in accordance
--
with the terms of Section 2.7. The Administrative Agent shall promptly notify
-----------
each Lender of such request.
(c) Making of Loans. Promptly after receipt of the Borrowing/Election
-----------------
Notice under Section 2.7 in respect of the Loans, the Administrative Agent shall
-----------
notify each Lender by telex or telecopy, or other similar form of transmission,
of the requested Loan. Each Lender shall make available its Loan in accordance
with the terms of Section 2.6. The Administrative Agent will promptly make the
-----------
funds so received from the Lenders available to the Borrower at the
Administrative Agent's office in Chicago, Illinois on the Funding Date and shall
disburse such proceeds in accordance with the Borrower's disbursement
instructions set forth in such Borrowing/Election Notice. The failure of any
Lender to deposit the amount described above with the Administrative Agent on
the Funding Date shall not relieve any other Lender of its obligations hereunder
to make its Loan on the Funding Date.
2.2 Repayment of Loans. The Loans shall be due and payable in full on the
--------------------
Termination Date.
2.3 Rate Options for all Loans; Maximum Interest Periods. The Loans may be
-----------------------------------------------------
Floating Rate Loans or Eurodollar Rate Loans, or a combination thereof, selected
by the Borrower in accordance with Section 2.10. The Borrower may select, in
------------
accordance with Section 2.9, rate options and Interest Periods applicable to the
-----------
Loans; provided that there shall be no more than eight (8) Interest Periods in
--------
effect with respect to all of the Loans at any time.
2.4 Prepayments.
-----------
(a) Optional Prepayments. The Borrower may from time to time and at any
---------------------
time upon at least one (1) Business Day's prior written notice repay or prepay,
without penalty or premium all or any part of outstanding Floating Rate Loans in
an aggregate minimum amount of $10,000,000 and in integral multiples of
$1,000,000 in excess thereof. Eurodollar Rate Loans may be voluntarily repaid
or prepaid prior to the last day of the applicable Interest Period, subject to
the indemnification provisions contained in Section 4.4, provided, that the
----------- --------
Borrower may not so prepay Eurodollar Rate Loans unless it shall have provided
at least three (3) Business Days' prior written notice to the Administrative
Agent of such prepayment and provided, further, that optional prepayments of
-------- -------
Eurodollar Rate Loans made pursuant to Section 2.1 with respect to the same
-----------
Interest Period shall be for the entire amount of all such outstanding
Eurodollar Rate Loans. No optional prepayments may be reborrowed once made.
(b) Mandatory Prepayments. Upon the consummation of any Financing by the
----------------------
Borrower or any Subsidiary, within three (3) Business Days after the Borrower's
or any of its Subsidiaries' receipt of any Net Cash Proceeds from such
Financing, the Borrower shall make a mandatory prepayment of the Obligations in
an amount equal to one hundred percent (100%) of such Net Cash Proceeds. The
amount of each such mandatory prepayment shall be applied ratably to the Loans.
On the date any such prepayment is received by the Administrative Agent, such
prepayment shall be applied first to Floating Rate Loans and to any Eurodollar
Rate Loans maturing on such date and then to subsequently maturing Eurodollar
Rate Loans. Nothing in this Section 2.4(b) shall be construed to constitute the
--------------
Lenders' consent to any Financing which is not expressly permitted by the terms
of this Agreement. No mandatory prepayments may be reborrowed once made.
2.5 Reduction of Commitments.
--------------------------
(a) Prior to the Funding Date, the Borrower may permanently reduce the
Aggregate Commitment in whole, or in part ratably among the Lenders, in an
aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in
excess of that amount upon at least three (3) Business Day's prior written
notice to the Administrative Agent, which notice shall specify the amount of any
such reduction.
(b) On the earlier of the Funding Date (after giving effect to the draw made
thereon) and April 1, 2003, (x) the undrawn Aggregate Commitment shall be
automatically and permanently terminated and (y) each Lender's undrawn
Commitment shall be automatically and permanently terminated in proportion to
its applicable Pro Rata Share of the Aggregate Commitment.
All accrued Facility Fees shall be payable on the effective date of any
termination of the obligations of the Lenders to make Loans hereunder or any
reduction of the Aggregate Commitment on the amount so reduced.
2.6 Method of Borrowing. Not later than 2:00 p.m. (Chicago time) on the
---------------------
Funding Date, each Lender shall make available its Loan, in immediately
available funds, to the Administrative Agent at its address specified pursuant
to Article XIV. The Administrative Agent will promptly make the funds so
------------
received from the Lenders available to the Borrower at the Administrative
---
Agent's aforesaid address.
---
2.7 Method of Requesting the Advance. The Borrower shall give the
------------------------------------
Administrative Agent irrevocable notice in substantially the form of Exhibit B
- ---------
hereto (a "BORROWING/ELECTION NOTICE") not later than 11:00 a.m. (Chicago time)
on or before the Funding Date of the Advance specifying: (i) the Funding Date
(which shall be a Business Day) for the Advance; (ii) the aggregate amount of
the Advance (which shall not be more than the Aggregate Commitment at such
time); (iii) the Type of Advance selected (which shall be a Floating Rate Loan
in accordance with the terms of Section 2.1(a)).
---------------
2.8 Amount of the Advance. The Advance shall not be more than the amount of
---------------------
the Aggregate Commitment.
2.9 Method of Selecting Types and Interest Periods for Conversion and
------------------------------------------------------------------------
Continuation of Loans.
-----------------
(A) Right to Convert. The Borrower may elect from time to time, subject to
-----------------
the provisions of Section 2.3 and this Section 2.9, to convert all or any part
----------- -----------
of a Loan of any Type into any other Type or Types of Loans; provided that any
--------
conversion of any Eurodollar Rate Loan shall be made on, and only on, the last
day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate Loans shall
----------------------------------------
continue as Floating Rate Loans unless and until such Floating Rate Loans are
repaid or converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall
continue as Eurodollar Rate Loans until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Rate Loans shall be automatically
converted into Floating Rate Loans unless the Borrower shall have repaid such
Loans or given the Administrative Agent a Borrowing/Election Notice in
accordance with Section 2.9(D) requesting that, at the end of such Interest
---------------
Period, such Eurodollar Rate Loans continue as a Eurodollar Rate Loan.
(C) No Conversion Post-Default. Notwithstanding anything to the contrary
----------------------------
contained in Section 2.9(A) or Section 2.9(B), no Loan may be converted into or
-------------- --------------
continued as a Eurodollar Rate Loan (except with the consent of the Required
Lenders) when any Default has occurred and is continuing.
(D) Borrowing/Election Notice. The Borrower shall give the Administrative
--------------------------
Agent an irrevocable Borrowing/Election Notice of each conversion of a Floating
Rate Loan into a Eurodollar Rate Loan or continuation of a Eurodollar Rate Loan
not later than 11:00 a.m. (Chicago time) three (3) Business Days prior to the
date of the requested conversion or continuation, specifying: (i) the requested
date (which shall be a Business Day) of such conversion or continuation; (ii)
the amount and Type of the Loan to be converted or continued; and (iii) the
amount of Eurodollar Rate Loan(s) into which such Loan is to be converted or
continued, and the duration of the Interest Period applicable thereto.
(E) Interest Periods. The Borrower shall select Interest Periods so that,
-----------------
to the best of the Borrower's knowledge, it will not be necessary to prepay all
or any portion of any Eurodollar Rate Loan prior to the last day of the
applicable Interest Period in order to make mandatory prepayments as required
pursuant to the terms hereof. Each Floating Rate Loan and all Obligations other
than Loans and the Facility Fee shall bear interest from and including the date
of the making of such Loan, in the case of Floating Rate Loans, and the date
such Obligation is due and owing in the case of such other Obligations, to (but
not including) the date of repayment thereof at the Alternate Base Rate,
changing when and as such Alternate Base Rate changes. Changes in the rate of
interest on that portion of the Loans maintained as Floating Rate Loans will
take effect simultaneously with each change in the Alternate Base Rate. Each
Eurodollar Rate Loan shall bear interest from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such Eurodollar
Rate Loan, changing when and as the Applicable Margin changes or when the
Supplemental Margin is in effect. Changes in the rate of interest on that
portion of the Loans maintained as Eurodollar Rate Loans will take effect
simultaneously with each change in the Applicable Margin or the implementation
of the Supplemental Margin.
2.10 Default Rate. After the occurrence and during the continuance of a
-------------
Default, the Administrative Agent or the Required Lenders may, at their option,
by notice to the Borrower declare that, (a) the interest rate(s) applicable to
the Obligations (other than Eurodollar Rate Loans and the Facility Fee) shall be
equal to the Alternate Base Rate, changing as and when the Alternate Base
Rate changes, or, for Eurodollar Rate Loans the then highest Eurodollar Rate
(utilizing the highest Applicable Margin in effect from time to time), in each
case, plus two percent (2.00%) per annum for all Loans and other Obligations,
----
and (b) the Facility Fee shall be calculated using the highest Applicable
Facility Fee Percentage; provided, that after the occurrence and during the
--------
continuance of a Default under Sections 8.1(F), (G) or (I), the interest rate
---------------- --- ---
described in clause (a) above and the Facility Fee described in clause (b) above
---------- ----------
shall be applicable without any election or action on the part of the
Administrative Agent or any other Lender.
2.11 Method of Payment. All payments of principal, interest, fees and
-------------------
commissions hereunder shall be made, without setoff, deduction or counterclaim,
in immediately available funds to the Administrative Agent at the Administrative
Agent's address specified pursuant to Article XIV, or at any other Lending
------------
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Borrower, by 2:00 p.m. (Chicago time) on the date
when due and shall be made ratably among the Lenders (unless such amount is not
to be shared ratably in accordance with the terms hereof). Each payment
delivered to the Administrative Agent for the account of any Lender shall be
delivered promptly by the Administrative Agent to such Lender in the same type
of funds which the Administrative Agent received at its address specified
pursuant to Article XIV or at any Lending Installation specified in a notice
------------
received by the Administrative Agent from such Lender. The Borrower authorizes
the Administrative Agent to charge the account of the Borrower maintained with
Bank One for each payment of principal, interest, fees and commissions as it
becomes due hereunder.
2.12 Evidence of Debt.
------------------
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts (a "LOAN ACCOUNT") evidencing the indebtedness of the
-------------
Borrower to such Lender owing to such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(b) The Register maintained by the Administrative Agent pursuant to Section
-------
13.3(C) shall include a control account, and a subsidiary account for each
-------
Lender, in which accounts (taken together) shall be recorded (i) the date and
-----
the amount of each Loan made hereunder, the Type thereof and the Interest
--
Period, if any, applicable thereto, (ii) the amount of any principal or interest
--
due and payable or to become due and payable from the Borrower to each Lender
hereunder, (iii) the effective date and amount of each Assignment Agreement
delivered to and accepted by it and the parties thereto pursuant to Section
-------
13.3, (iv) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(c) The entries made in the Loan Account, the Register and the other
accounts maintained pursuant to subsections (a) or (b) of this Section shall be
--------------- ---
conclusive and binding for all purposes, absent manifest error, unless the
Borrower objects to information contained in the Loan Accounts, the Register or
the other accounts within thirty (30) days of the Borrower's receipt of such
information; provided that the failure of any Lender or the Administrative Agent
--------
to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Loans in accordance with the terms
of this Agreement.
(d) Any Lender may request that the Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note for such Loans payable to the order of such
Lender and in a form approved by the Administrative Agent in its reasonable
discretion and consistent with the terms of this Agreement. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 13.3) be represented by one or
------------
more promissory notes in such form payable to the order of the payee named
therein.
2.13 Telephonic Notices. The Borrower authorizes the Lenders and the
-------------------
Administrative Agent to extend, convert or continue the Advance, effect
selections of Types of Loans and to transfer funds based on telephonic notices
made by any person or persons the Administrative Agent or any Lender in good
faith believes to be acting on behalf of the Borrower. The Borrower agrees to
deliver promptly to the Administrative Agent a written confirmation, signed by
an Authorized Officer, if such confirmation is requested by the Administrative
Agent or any Lender, of each telephonic notice. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Lenders, the records of the Administrative Agent and the Lenders
with respect to such telephonic notice shall govern absent manifest error. In
case of disagreement concerning such notices, if the Administrative Agent has
recorded telephonic Borrowing/Election Notices, such recordings will be made
available to the Borrower upon the Borrower's request therefor.
2.14 Promise to Pay; Interest and Facility Fees; Interest Payment Dates;
-----------------------------------------------------------------------
Interest and Fee Basis; Loan and Control Accounts.
-----------------------------------------------------
(A) Promise to Pay. The Borrower unconditionally promises to pay when due
----------------
the principal amount of each Loan and all other Obligations incurred by it, and
to pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the other Loan Documents.
(B) Interest Payment Dates. Interest accrued on each Floating Rate Loan
------------------------
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof and on any date on which the Floating Rate Loan is
prepaid, whether by acceleration or otherwise (including at maturity). Interest
accrued on each Eurodollar Rate Loan shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurodollar Rate Loan is
prepaid, whether by acceleration or otherwise, and at maturity. Interest
accrued on each Eurodollar Rate Loan having an Interest Period longer than three
months shall also be payable on the last day of each three-month interval during
such Interest Period. Interest accrued on the principal balance of all other
Obligations shall be payable in arrears (i) on the last day of each calendar
quarter, commencing on the first such day following the incurrence of such
Obligation, (ii) upon repayment thereof in full or in part, and (iii) if not
theretofore paid in full, at the time such other Obligation becomes due and
payable (whether by acceleration or otherwise).
(C) Facility Fees and Administrative Agent's Fees. The Borrower shall pay
-----------------------------------------------
to the Administrative Agent, for the account of the Lenders in accordance with
their Pro Rata Shares, from and after the Closing Date until the Termination
Date, a facility fee (the "FACILITY FEE") accruing at the per annum rate of the
then Applicable Facility Fee Percentage, on the Aggregate Commitment (whether
used or unused) (or from and after the Funding Date, the aggregate principal
amount of all Loans). All such Facility Fees payable under this clause (C)
----------
shall be payable quarterly in arrears on each Payment Date occurring after the
Closing Date (with the first such payment being calculated for the period from
the Closing Date and ending on March 31, 2003 and on the Termination Date.
(D) Interest and Fee Basis; Applicable Margin and Applicable Facility Fee
------------------------------------------------------------------------
Percentage.
--------
(i) Interest accrued on Eurodollar Rate Loans, Facility Fees and Floating
Rate Loans where the basis for calculation is the Federal Funds Effective Rate
shall be calculated for actual days elapsed on the basis of a year of 360 days,
and interest accrued on Floating Rate Loans where the basis for calculation is
the Prime Rate shall be calculated for actual days elapsed on the basis of a
year of 365, or when appropriate 366, days. Interest shall be payable for the
day an Obligation is incurred but not for the day of any payment on the amount
paid if payment is received prior to 2:00 p.m. (Chicago time) at the place of
payment. If any payment of principal of or interest on a Loan or any payment of
any other Obligations shall become due on a day which is not a Business
Day, such payment shall be made on the next succeeding Business Day and, in the
case of a principal payment, such extension of time shall be included in
computing interest, fees and commissions in connection with such payment.
(ii) The Applicable Margin and Applicable Facility Fee Percentage shall be
determined from time to time by reference to the table set forth in Section
2.14(D) of the Existing 5-Year Credit Agreement on the basis of the then
applicable "Leverage Ratio" (as defined therein) and shall be adjusted as and
when required by the Existing 5-Year Credit Agreement.
2.15 Notification of the Advance, Interest Rates, Prepayments and Aggregate
-----------------------------------------------------------------------
Commitment Reductions. Promptly after receipt thereof, the Administrative Agent
---------------------
will notify each Lender of the contents of each Aggregate Commitment
reduction notice, Borrowing/Election Notice and repayment notice received by it
hereunder. The Administrative Agent will notify each Lender of the interest
rate applicable to each Eurodollar Rate Loan promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.16 Lending Installations. Each Lender may book its Loans at any Lending
----------------------
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation. Subject to the provisions of Section 4.6, each Lender may, by
-----------
written or facsimile notice to the Administrative Agent and the Borrower,
designate a Lending Installation through which Loans will be made by it and for
whose account Loan payments are to be made.
2.17 Non-Receipt of Funds by the Administrative Agent. Unless the Borrower
-------------------------------------------------
or a Lender, as the case may be, notifies the Administrative Agent prior to the
date on which it is scheduled to make payment to the Administrative Agent of (i)
in the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption.
If such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
2.18 Termination Date. This Agreement shall be effective until the
-----------------
Termination Date. Notwithstanding the termination of this Agreement, until all
of the Obligations (other than contingent indemnity obligations) shall have been
fully and indefeasibly paid and satisfied in cash (to the full extent that such
Obligations are payable in cash) and all financing arrangements among the
Borrower and the Lenders shall have been terminated, all of the rights and
remedies under this Agreement and the other Loan Documents shall survive.
2.19 Replacement of Certain Lenders. In the event a Lender ("AFFECTED
---------------------------------
LENDER") shall have: (i) failed to fund its Pro Rata Share of the Advance
requested by the Borrower, which such Lender is obligated to fund under the
terms of this Agreement and which failure has not been cured, (ii) requested
compensation from the Borrower under Sections 4.1, 4.2 or 4.5 to recover Taxes,
------------ --- ---
Other Taxes or other additional costs incurred by such Lender which are not
being incurred generally by the other Lenders, (iii) delivered a notice pursuant
to Section 4.3 claiming that such Lender is unable to extend Eurodollar Rate
------------
Loans to the Borrower for reasons not generally applicable to the other Lenders
or (iv) has invoked Section 10.2, then, in any such case, the Borrower or the
------------
Administrative Agent may make written demand on such Affected Lender (with a
copy to the Administrative Agent in the case of a demand by the Borrower and a
copy to the Borrower in the case of a demand by the Administrative Agent) for
the Affected Lender to assign, and such Affected Lender shall use commercially
reasonable efforts to assign pursuant to one or more duly executed Assignment
Agreements five (5) Business Days after the date of such demand, to one or more
financial institutions that comply with the provisions of Section 13.3 which the
------------
Borrower or the Administrative Agent, as the case may be, shall have engaged for
such purpose ("REPLACEMENT LENDER"), all of such Affected Lender's rights and
obligations under this Agreement and the other Loan Documents (including,
without limitation, its Commitment and all Loans owing to it) in accordance
with Section 13.3. The Administrative Agent agrees, upon the occurrence of such
------------
events with respect to an Affected Lender and upon the written request of the
Borrower, to use its reasonable efforts to obtain the commitments from one or
more financial institutions to act as a Replacement Lender. The Administrative
Agent is authorized to execute one or more of such Assignment Agreements as
attorney-in-fact for any Affected Lender failing to execute and deliver the same
within five (5) Business Days after the date of such demand. Further, with
respect to such assignment the Affected Lender shall have concurrently received,
in cash, all amounts due and owing to the Affected Lender hereunder or under any
other Loan Document, including, without limitation, the aggregate outstanding
principal amount of the Loans owed to such Lender, together with accrued
interest thereon through the date of such assignment, amounts payable under
Sections 4.1, 4.2 and 4.5 with respect to such Affected Lender and compensation
--------- --- ---
payable under Section 2.14(C) in the event of any replacement of any Affected
---------------
Lender under clause (ii) or clause (iii) of this Section 2.19; provided that
------------
upon such Affected Lender's replacement, such Affected Lender shall cease to be
a party hereto but shall continue to be entitled to the benefits of Sections
--------
4.1, 4.2, 4.4, 4.5 and 10.7, as well as to any fees accrued for its account
--- --- --- ----
hereunder and not yet paid, and shall continue to be obligated under Section
-------
11.8 with respect to losses, obligations, liabilities, damages, penalties,
-
actions, judgements, costs, expenses or disbursements for matters which occurred
-
prior to the date the Affected Lender is replaced. Upon the replacement of any
Affected Lender pursuant to this Section 2.19, the provisions of Section 9.2
------------ -----------
shall continue to apply with respect to Loans which are then outstanding with
respect to which the Affected Lender failed to fund its Pro Rata Share and which
failure has not been cured.
ARTICLE III: [RESERVED]
==========
ARTICLE IV: YIELD PROTECTION; TAXES
4.1 Yield Protection. If, on or after the date of this Agreement, the
-----------------
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending Installation to any Taxes,
or changes the basis of taxation of payments (other than with respect to
Excluded Taxes) to any Lender in respect of its Loans, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurodollar Rate Loans),
or
(iii) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making, funding or
maintaining its Loans or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with its Loans, or requires any
Lender or any applicable Lending Installation to make any payment calculated by
reference to the amount of Loans held or interest received by it, by an amount
deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Loans or Commitment
or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Loans or Commitment, then, within fifteen
(15) days of demand by such Lender, the Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received.
Notwithstanding the foregoing provisions of this Section 4.1, if any Lender
-----------
fails to notify the Borrower of any event or circumstance which will entitle
such Lender to compensation pursuant to this Section 4.1 within ninety (90) days
-----------
after such Lender obtains knowledge of such event or circumstance, then such
Lender shall not be entitled to compensation from the Borrower for any amount
arising prior to the date which is ninety (90) days before the date on which
such Lender notifies the Borrower of such event or circumstance.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines the
-------------------------------------------
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within fifteen (15) days of demand
by such Lender, the Borrower shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender reasonably determines is attributable to
this Agreement, its Loans or its Commitment hereunder (after taking into account
such Lender's customary policies as to capital adequacy). "CHANGE" means
(i) any change after the date of this Agreement in the Risk-Based Capital
Guidelines or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i) the
risk-based capital guidelines in effect in the United States on the date of this
Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
4.3 Availability of Types of Loans. If any Lender determines that
----------------------------------
maintenance of its Eurodollar Rate Loans at a suitable Lending Installation
-
would violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Rate Loans are not
available or (ii) the interest rate applicable to Eurodollar Rate Loans does not
accurately reflect the cost of making or maintaining Eurodollar Rate Loans, then
the Administrative Agent shall suspend the availability of Eurodollar Rate Loans
and require any affected Eurodollar Rate Loans to be repaid or converted to
Floating Rate Loans, subject to the payment of any funding indemnification
amounts required by Section 4.4.
------------
4.4 Funding Indemnification. If any payment of a Eurodollar Rate Loan
------------------------
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar Rate
Loan is not made on the date specified by the Borrower for any reason other than
default by the Lenders, the Borrower will indemnify each Lender for any loss or
cost incurred by it resulting therefrom (excluding loss of margin), including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurodollar Rate Loan.
4.5 Taxes.
-----
(i) All payments by the Borrower to or for the account of any Lender or the
Administrative Agent hereunder or under any of the other Loan Documents shall be
made free and clear of and without deduction for any and all Taxes. If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to any Lender or the Administrative Agent, (a) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 4.5) such Lender or the Administrative Agent (as the case may be)
------------
receives an amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the
Administrative Agent the original copy of a receipt evidencing payment thereof
within thirty (30) days after such payment is made. Such Lender or the
Administrative Agent, as the case may be, shall promptly reimburse the Borrower
for such payments to the extent such Lender or the Administrative Agent receives
actual knowledge that it has received any tax credit or other benefit in
connection with such tax payments and that such tax credit or benefit is clearly
attributable to this Agreement.
(ii) In addition, the Borrower hereby agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under any
promissory note issued hereunder or from the execution or delivery of, or
otherwise with respect to, this Agreement or any promissory note issued
hereunder ("OTHER TAXES").
(iii) The Borrower hereby agrees to indemnify the Administrative Agent and
each Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 4.5) paid by the Administrative Agent or such Lender and any liability
-------
(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within thirty
(30) days of the date the Administrative Agent or such Lender makes demand
therefor pursuant to Section 4.6.
------------
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "NON-U.S. LENDER") agrees that it
will, not less than ten (10) Business Days after the date of this Agreement,
deliver to each of the Borrower and the Administrative Agent a United States
Internal Revenue Form W-8 or W-9, as the case may be, and deliver to the
Administrative Agent two duly completed copies of United States Internal Revenue
Forms W-8BEN or W-8ECI, certifying in either case that it is entitled to an
exemption from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the Administrative
Agent (x) renewals or additional copies of such form (or any successor form) on
or before the date that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Administrative Agent. All forms or amendments
described in the preceding sentence shall certify that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such Lender
advises the Borrower and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide the
Borrower with an appropriate form pursuant to clause (iv), above (unless such
-----------
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 4.5 with respect to Taxes imposed by the United States; provided
------------ --------
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrower shall take
-----------
such steps as such Non-U.S. Lender shall reasonably request (without cost to the
Borrower) to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any promissory
note issued hereunder pursuant to the law of any relevant jurisdiction or any
treaty shall deliver to the Borrower (with a copy to the Administrative Agent),
at the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed, because such Lender
failed to notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for any other reason
other than as a result of the gross negligence or willful misconduct of the
Administrative Agent), such Lender shall indemnify the Administrative Agent
fully for all amounts paid, directly or indirectly, by the Administrative Agent
as tax, withholding therefor, or otherwise, including penalties and interest,
and including taxes imposed by any jurisdiction on amounts payable to the
Administrative Agent under this subsection, together with all costs and expenses
related thereto (including attorneys fees and time charges of attorneys for the
Administrative Agent, which attorneys may be employees of the Administrative
Agent). The obligations of the Lenders under this Section 4.5(vii) shall
----------------
survive the payment of the Obligations and termination of this Agreement.
4.6 Lender Statements; Survival of Indemnity. To the extent reasonably
--------------------------------------------
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Rate Loans to reduce any liability of the Borrower to
such Lender under Sections 4.1, 4.2 and 4.5 or to avoid the unavailability of
------------ --- ---
Eurodollar Rate Loans under Section 4.3, so long as such designation is not, in
-----------
the reasonable judgment of such Lender, disadvantageous to such Lender. Each
Lender shall deliver a written statement of such Lender to the Borrower (with a
copy to the Administrative Agent) as to the amount due, if any, under Section
-------
4.1, 4.2, 4.4 or 4.5. Such written statement shall set forth in reasonable
- --- --- ---
detail the calculations upon which such Lender determined such amount and shall
-
be final, conclusive and binding on the Borrower in the absence of manifest
error. Determination of amounts payable under such Sections in connection with
a Eurodollar Rate Loan shall be calculated as though each Lender funded its
Eurodollar Rate Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Loan, whether in fact that is the case or not, and
without regard to loss of margin. Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable on demand
after receipt by the Borrower of such written statement. The obligations of the
Borrower under Sections 4.1, 4.2, 4.4 and 4.5 shall survive payment of the
------------ --- --- ---
Obligations and termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
---------------------
5.1 Funding Date. The Lenders shall not be required to make the Advance
-------------
unless the Borrower has furnished to the Administrative Agent each of the
following, with sufficient copies for the Lenders on or before March 31, 2003,
all in form and substance satisfactory to the Administrative Agent, the
Syndication Agent and the Lenders:
(1) Copies of the Certificate of Incorporation of the Borrower and each of
the Subsidiary Guarantors (collectively, the "LOAN PARTIES"), together with all
amendments and a certificate of good standing, both certified by the appropriate
governmental officer in its jurisdiction of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary of each of the
Loan Parties, of its By-Laws and of its Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed necessary by counsel for any
Lender) authorizing the execution of the Loan Documents entered into by it;
(3) An incumbency certificate, executed by the Secretary or Assistant
Secretary of each of the Loan Parties, which shall identify by name and title
and bear the signature of the officers of the Loan Parties authorized to sign
the Loan Documents and the officers of the Borrower authorized to make
borrowings hereunder, upon which certificate the Lenders shall be entitled to
rely until informed of any change in writing by the Borrower; provided, that any
--------
officer who will neither be a signatory to this Agreement nor an individual
requesting borrowings hereunder, shall be permitted to deliver a facsimile of
such officer's signature in satisfaction of this Section 5.1(3);
---------------
(4) A Certificate, in form and substance satisfactory to the Administrative
Agent, signed by the Chief Financial Officer of the Borrower, stating that on
the Funding Date, both before and after giving effect to the Designated
Acquisition and the Advance, (a) all of the representations in this Agreement
are true and correct in all material respects and no Default or Unmatured
Default has occurred and is continuing or would result after giving effect to
the Designated Acquisition or the Advance and (b) no "Default" or "Unmatured
Default" has occurred and is continuing under and as defined in either of the
Existing Credit Agreements or would result after giving effect to the Designated
Acquisition or the Advance;
(5) The written opinion of the Loan Parties' counsel, addressed to the
Administrative Agent and the Lenders, in substantially the form attached hereto
as Exhibit D and containing assumptions and qualifications acceptable to the
----------
Administrative Agent and the Lenders and an opinion of counsel delivered in
connection with the Designated Acquisition, in form and substance satisfactory
to the Administrative Agent and the Lenders, with respect to the enforceability
of the Designated Acquisition Agreement and compliance by the Borrower and its
Subsidiaries with all applicable laws in connection with the Designated
Acquisition;
(6) Evidence satisfactory to the Administrative Agent that (i) all
conditions precedent to the consummation of the Designated Acquisition have been
satisfied or waived by the Borrower and all of the representations and
warranties in the Designated Acquisition Agreement are accurate in all material
respects as of the date on which the Designated Acquisition is consummated; (ii)
the Designated Acquisition has been approved by all necessary corporate action
of the Borrower's, the Seller's and the Acquired Business's Board of Directors;
(iii) the Designated Acquisition Agreement includes a condition precedent to the
consummation of the Designated Acquisition providing that no material adverse
change shall have occurred with respect to the Seller or the Acquired Business
since December 31, 2001; (iv) all required U.S. governmental approvals related
to the Designated Acquisition have been obtained and all related filings made
and any applicable waiting periods shall have expired or been terminated,
including those prescribed by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act,
as amended; and (v) the Designated Acquisition shall close contemporaneously
with the funding under this Agreement; and
(7) Written money transfer instructions reasonably requested by the
Administrative Agent, addressed to the Administrative Agent and signed by an
Authorized Officer.
In addition to the foregoing, the Lenders shall not be required to make the
Advance unless on the Funding Date, both before and after taking into account
the proposed borrowing, there exists no Default or Unmatured Default. The
Borrowing/Election Notice with respect to the Advance shall constitute a
representation and warranty by the Borrower that the condition described in the
immediately preceding sentence has been satisfied.
5.2 Closing Date. This Agreement shall not be effective unless the Borrower
------------
has furnished to the Administrative Agent each of the following, with
sufficient copies for the Lenders, all in form and substance satisfactory to the
Administrative Agent, the Syndication Agent and the Lenders:
(a) Signature pages or counterparts to each of this Agreement and the
Subsidiary Guaranty (and the Administrative Agent, the Syndication Agent and
each Lender shall have delivered their respective signature pages to this
Agreement); and
(b) A Certificate, in form and substance satisfactory to the Administrative
Agent, signed by the Executive Vice President - Chief Financial Officer of the
Borrower, stating that on the Closing Date all the representations in this
Agreement made by the Borrower are true and correct in all material respects and
no Default or Unmatured Default has occurred and is continuing.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
--------------------------------
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans and the other financial accommodations
hereunder, the Borrower hereby represents and warrants as follows to each Lender
and the Administrative Agent as of the Closing Date, the Funding Date (giving
effect to the consummation of the transactions contemplated by the Transaction
Documents), and thereafter on each date as required hereunder (other than with
respect to Section 6.5 which shall only be made by the Borrower as of the
------------
Closing Date and Section 6.18 which shall only be made by the Borrower as of the
------------
Funding Date):
6.1 Organization; Corporate Powers. The Borrower and each of its
--------------------------------
Subsidiaries (i) is a corporation, limited liability company, partnership or
--
other commercial entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) is duly qualified
to do business as a foreign entity and is in good standing under the laws of
each jurisdiction in which failure to be so qualified and in good standing could
reasonably be expected to have a Material Adverse Effect, and (iii) has all
requisite power and authority to own, operate and encumber its property and to
conduct its business as presently conducted and as proposed to be conducted.
6.2 Authority.
---------
(A) The Borrower and each of its Subsidiaries has the requisite power and
authority to execute, deliver and perform each of the Transaction Documents
which are to be executed by it in connection with the Transactions or which have
been executed by it as required by this Agreement and the other Loan
Documents and (ii) to file the Transaction Documents which must be filed by it
in connection with the Transactions or which have been filed by it as required
by this Agreement, the other Loan Documents or otherwise with any Governmental
Authority.
(B) The execution, delivery, performance and filing, as the case may be, of
each of the Relevant Transaction Documents which must be executed or filed by
the Borrower or any of its Subsidiaries in connection with the Transactions or
which have been executed or filed as required by this Agreement, the other Loan
Documents or otherwise and to which the Borrower or any of its Subsidiaries is
party, and the consummation of the transactions contemplated thereby, have been
duly approved by the respective boards of directors and, if necessary, the
shareholders of the Borrower and its Subsidiaries, and such approvals have not
been rescinded. No other action or proceedings on the part of the Borrower or
its Subsidiaries are necessary to consummate such transactions.
(C) Each of the Relevant Transaction Documents to which the Borrower or any
of its Subsidiaries is a party has been duly executed, delivered or filed, as
the case may be, by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms (except as enforceability
may be limited by bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles,
including concepts of reasonableness, materiality, good faith and fair dealing
and the possible unavailability of specific performance, injunctive relief or
other equitable remedies (whether enforcement is sought by proceedings in equity
or at law)), is in full force and effect (other than as a result of expiration
in accordance with its terms) and no material term or condition thereof has been
amended, modified or waived from the terms and conditions contained in the
Relevant Transaction Documents delivered to the Administrative Agent pursuant to
Section 5.1 without the prior written consent of the Required Lenders (or all of
-----------
the Lenders if required by Section 9.3), and the Borrower and its Subsidiaries
-----------
have, and, to the best of the Borrower's and its Subsidiaries' knowledge, all
other parties thereto have, performed and complied with all the material terms,
provisions, agreements and conditions set forth therein and required to be
performed or complied with by such parties on or before the Closing Date or
Funding Date, as applicable, and no unmatured default, default or breach of any
covenant by any such party exists thereunder.
6.3 No Conflict; Governmental Consents for the Borrower. The execution,
-------------------------------------------------------
delivery and performance of each of the Loan Documents and other Transaction
Documents to which the Borrower or any of its Subsidiaries is a party do not and
will not (i) conflict with the certificate or articles of incorporation or
by-laws of the Borrower or any such Subsidiary, (ii) with respect to the
Transaction Documents other than the Loan Documents, constitute a tortious
interference with any Contractual Obligation of any Person or conflict with,
result in a breach of or constitute (with or without notice or lapse of time or
both) a default under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or Contractual Obligation of the Borrower
or any such Subsidiary, or require termination of any Contractual Obligation,
except such interference, breach, default or termination which individually or
in the aggregate could not reasonably be expected to have a Material Adverse
Effect, (iii) with respect to the Loan Documents, constitute a tortious
interference with any Contractual Obligation of any Person or conflict with,
result in a breach of or constitute (with or without notice or lapse of time or
both) a default under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or Contractual Obligation of the Borrower
or any such Subsidiary, or require termination of any Contractual Obligation,
except such interference, breach or default which individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect,
(iv) result in or require the creation or imposition of any Lien whatsoever upon
any of the property or assets of the Borrower or any such Subsidiary, other than
Liens permitted or created by the Loan Documents, or (v) require any approval of
the Borrower's or any such Subsidiary's Board of Directors or shareholders
except such as have been obtained. Except as set forth on Schedule 6.3 to this
------------
Agreement, the execution, delivery and performance of each of the Transaction
Documents to which the Borrower or any of its Subsidiaries is a party do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, including under any
Environmental Property Transfer Act, except filings, consents or notices which
have been made, obtained or given, or which, if not made, obtained or given,
individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
6.4 Financial Statements. The September 30, 2002 consolidated financial
---------------------
statements of the Borrower and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
6.5 No Material Adverse Change. Since September 30, 2002 (determined by
-----------------------------
reference to the financial statements prepared with respect to the Borrower and
its Subsidiaries), there has occurred no change in the business, properties,
condition (financial or otherwise), performance, results of operations or
prospects of the Borrower, or the Borrower and its Subsidiaries taken as a whole
or any other event which has had or would reasonably be expected to have a
Material Adverse Effect.
6.6 Taxes.
-----
(A) Tax Examinations. All deficiencies which have been asserted against the
----------------
Borrower or any of the Borrower's Subsidiaries as a result of any federal,
state, local or foreign tax examination for each taxable year in respect of
which an examination has been conducted have been fully paid or finally settled
or are being contested in good faith, and no issue has been raised by any taxing
authority in any such examination which, by application of similar principles,
reasonably can be expected to result in assertion by such taxing authority of a
material deficiency for any other year not so examined which has not been
reserved for in the Borrower's consolidated financial statements to the extent,
if any, required by Agreement Accounting Principles. Except as permitted
pursuant to Section 7.2(D), neither the Borrower nor any of the Borrower's
---------------
Subsidiaries anticipates any material tax liability with respect to the years
which have not been closed pursuant to applicable law.
(B) Payment of Taxes. All tax returns and reports of the Borrower and its
------------------
Subsidiaries required to be filed have been timely filed, and all taxes,
assessments, fees and other governmental charges thereupon and upon their
respective property, assets, income and franchises which are shown in such
returns or reports to be due and payable have been paid except those items which
are being contested in good faith and have been reserved for in accordance with
Agreement Accounting Principles. The Borrower has no knowledge of any proposed
tax assessment against the Borrower or any of its Subsidiaries that will have or
could reasonably be expected to have a Material Adverse Effect.
6.7 Litigation; Loss Contingencies and Violations. Except as set forth in
-----------------------------------------------
Schedule 6.7 (the "DISCLOSED LITIGATION"), there is no action, suit, proceeding,
-----------
arbitration or, to the Borrower's knowledge, investigation before or by any
Governmental Authority or private arbitrator pending or, to the Borrower's
knowledge, threatened against the Borrower, any of its Subsidiaries or any
property of any of them. Neither any of the Disclosed Litigation nor any
action, suit, proceeding, arbitration or investigation which has commenced since
the Closing Date (or the most recent update of the Disclosed Litigation) (i)
challenges the validity or the enforceability of any material provision of the
Transaction Documents or (ii) has had or could reasonably be expected to have a
Material Adverse Effect. There is no material loss contingency within the
meaning of Agreement Accounting Principles which has not been reflected in the
consolidated financial statements of the Borrower prepared and delivered
pursuant to Section 7.1(A) for the fiscal period during which such material loss
--------------
contingency was incurred. Neither the Borrower nor any of its Subsidiaries is
(A) in violation of any applicable Requirements of Law which violation will have
or could reasonably be expected to have a Material Adverse Effect, or (B)
subject to or in default with respect to any final judgment, writ, injunction,
restraining order or order of any nature, decree, rule or regulation of any
court or Governmental Authority which will have or could reasonably be expected
to have a Material Adverse Effect.
6.8 Subsidiaries. Schedule 6.8 to this Agreement (i) contains a description
------------ ------------
of the corporate structure of the Borrower its Subsidiaries and any other Person
in which the Borrower or any of its Subsidiaries holds a material Equity
Interest after giving effect to the Designated Acquisition and (ii) accurately
sets forth (A) the correct legal name, the jurisdiction of incorporation and the
jurisdictions in which each of the Borrower and the direct and indirect
Subsidiaries of the Borrower are qualified to transact business as a foreign
corporation, (B) the authorized, issued and outstanding shares of each class of
Capital Stock of the Borrower and each of its Subsidiaries and the owners of
such shares (both as of the consummation of the Designated Acquisition and on a
fully-diluted basis), and (C) a summary of the direct and indirect partnership,
joint venture, or other Equity Interests, if any, of the Borrower and each
Subsidiary of the Borrower in any Person that is not a corporation. After the
formation or acquisition of any New Subsidiary permitted under Section 7.3(F),
--------------
if requested by the Administrative Agent, the Borrower shall provide a
supplement to Schedule 6.8 to this Agreement reflecting the addition of such New
------------
Subsidiary. Except as disclosed on Schedule 6.8, none of the issued and
-------------
outstanding Capital Stock of the Borrower or any of the Borrower's Subsidiaries
is subject to any vesting, redemption, or repurchase agreement, and there are no
warrants or options outstanding with respect to such Capital Stock. The
outstanding Capital Stock of the Borrower and each of its Subsidiaries is duly
authorized, validly issued, fully paid and nonassessable and the stock of the
Borrower's Subsidiaries is not Margin Stock.
6.9 ERISA. No Benefit Plan has incurred any material accumulated funding
-----
deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Code)
whether or not waived. Neither the Borrower nor any member of the Controlled
Group has incurred any material liability to the PBGC which remains outstanding
other than the payment of premiums. As of the last day of the most recent prior
plan year, the market value of assets under each Benefit Plan, other than any
Multiemployer Plan, was not by a material amount less than the present value of
benefit liabilities thereunder (determined in accordance with the actuarial
valuation assumptions described therein). Neither the Borrower nor any member
of the Controlled Group has (i) failed to make a required contribution or
payment to a Multiemployer Plan of a material amount or (ii) incurred a material
complete or partial withdrawal under Section 4203 or Section 4205 of ERISA from
a Multiemployer Plan. Neither the Borrower nor any member of the Controlled
Group has failed to make an installment or any other payment of a material
amount required under Section 412 of the Code on or before the due date for such
installment or other payment. Each Plan, Foreign Employee Benefit Plan and
Non-ERISA Commitment complies in all material respects in form, and has been
administered in all material respects in accordance with its terms and, in
accordance with all applicable laws and regulations, including but not limited
to ERISA and the Code. There have been no and there is no prohibited
transaction described in Sections 406 of ERISA or 4975 of the Code with respect
to any Plan for which a statutory or administrative exemption does not exist
which could reasonably be expected to subject the Borrower or any of is
Subsidiaries to material liability. Neither the Borrower nor any member of the
Controlled Group has taken or failed to take any action which would constitute
or result in a Termination Event, which action or inaction could reasonably be
expected to subject the Borrower or any of its Subsidiaries to material
liability. Neither the Borrower nor any member of the Controlled Group is
subject to any material liability under, or has any potential material liability
under, Section 4063, 4064, 4069, 4204 or 4212(c) of ERISA. The present value of
the aggregate liabilities to provide all of the accrued benefits under any
Foreign Pension Plan do not exceed the current fair market value of the assets
held in trust or other funding vehicle for such plan by a material amount. With
respect to any Foreign Employee Benefit Plan other than a Foreign Pension Plan,
reasonable reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction
in which such plan is maintained. For purposes of this Section 6.9, "material"
-----------
means any amount, noncompliance or other basis for liability which could
reasonably be expected to subject the Borrower or any of its Subsidiaries to
liability, individually or in the aggregate with each other basis for liability
under this Section 6.9, in excess of $25,000,000.
------------
6.10 Accuracy of Information. The information, exhibits and reports
-------------------------
furnished by or on behalf of the Borrower and any of its Subsidiaries to the
Administrative Agent or to any Lender in connection with the negotiation of, or
compliance with, the Loan Documents, the representations and warranties of the
Borrower and its Subsidiaries contained in the Loan Documents, and all
certificates and documents delivered to the Administrative Agent and the Lenders
pursuant to the terms thereof, including, without limitation, the Designated
Acquisition Agreement following the execution thereof, taken as a whole, do not
contain as of the date furnished any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements contained
herein or therein, in light of the circumstances under which they were made, not
misleading.
6.11 Securities Activities. Neither the Borrower nor any of its
----------------------
Subsidiaries is engaged in the business of extending credit for the purpose of
--
purchasing or carrying Margin Stock.
6.12 Material Agreements. Neither the Borrower nor any Subsidiary is a
--------------------
party to any Contractual Obligation or subject to any charter or other corporate
or similar restriction which individually or in the aggregate will have or could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries has received notice or has knowledge that (i) it is
in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it, or (ii) any condition exists which, with the giving of notice
or the lapse of time or both, would constitute a default with respect to any
such Contractual Obligation, in each case, except where such default or
defaults, if any, individually or in the aggregate will not have or could not
reasonably be expected to have a Material Adverse Effect.
6.13 Compliance with Laws. The Borrower and its Subsidiaries are in
-----------------------
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
6.14 Assets and Properties. The Borrower and each of its Subsidiaries has
-----------------------
legal title to all of its assets and properties (tangible and intangible, real
or personal) owned by it or a valid leasehold interest in all of its leased
assets (except insofar as marketability may be limited by any laws or
regulations of any Governmental Authority affecting such assets), and all such
assets and property are free and clear of all Liens, except Liens permitted
under Section 7.3(C). Substantially all of the assets and properties owned by,
--------------
leased to or used by the Borrower and/or each such Subsidiary of the Borrower
are in adequate operating condition and repair, ordinary wear and tear excepted.
Neither this Agreement nor any Transaction Document, nor any transaction
contemplated under any such agreement, will affect any right, title or interest
of the Borrower or such Subsidiary in and to any of such assets in a manner that
has had or could reasonably be expected to have a Material Adverse Effect.
6.15 Statutory Indebtedness Restrictions. Neither the Borrower nor any of
-------------------------------------
its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16 Insurance. The insurance policies and programs in effect with respect
---------
to the respective properties, assets, liabilities and business of the Borrower
and its Subsidiaries reflect coverage that is reasonably consistent with prudent
industry practice.
6.17 Labor Matters. No attempt to organize the employees of the Borrower,
--------------
and no labor disputes, strikes or walkouts affecting the operations of the
Borrower or any of its Subsidiaries, is pending, or, to the Borrower's
knowledge, threatened, planned or contemplated, which has or could reasonably be
expected to have a Material Adverse Effect.
6.18 Designated Acquisition. (i) All conditions precedent to the
-----------------------
consummation of the Designated Acquisition have been satisfied or waived by the
-
Borrower and all of the representations and warranties in the Designated
Acquisition Agreement are accurate in all material respects as of the date on
which the Designated Acquisition is consummated; (ii) the Designated Acquisition
has been approved by all necessary corporate action of the Borrower's, the
Seller's and the Acquired Business's Board of Directors; (iii) the Designated
Acquisition Agreement includes a condition precedent to the consummation of the
Designated Acquisition providing that no material adverse change shall have
occurred with respect to the Seller or the Acquired Business since December 31,
2001; and (iv) all required U.S. governmental approvals related to the
Designated Acquisition have been obtained and all related filings made and any
applicable waiting periods shall have expired or been terminated, including
those prescribed by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act, as
amended.
6.19 Environmental Matters. (A) Except as disclosed on Schedule 6.19 to
---------------------- -------------
this Agreement
(i) the operations of the Borrower and its Subsidiaries comply in all
material respects with Environmental, Health or Safety Requirements of Law;
(ii) the Borrower and its Subsidiaries have all material permits, licenses
or other authorizations required under Environmental, Health or Safety
Requirements of Law and are in material compliance with such permits;
(iii) neither the Borrower, any of its Subsidiaries nor any of their
respective present property or operations, or, to the Borrower's or any of its
Subsidiaries' knowledge, any of their respective past property or operations,
are subject to or the subject of, any investigation known to the Borrower or any
of its Subsidiaries, any judicial or administrative proceeding, order, judgment,
decree, settlement or other agreement respecting: (A) any material violation of
Environmental, Health or Safety Requirements of Law; (B) any material remedial
action; or (C) any material claims or liabilities arising from the Release or
threatened Release of a Contaminant into the environment;
(iv) there is not now, nor to the Borrower's or any of its Subsidiaries'
knowledge has there ever been, on or in the property of the Borrower or any of
its Subsidiaries any landfill, waste pile, underground storage tanks,
aboveground storage tanks, surface impoundment or hazardous waste storage
facility of any kind, any polychlorinated biphenyls (PCBs) used in hydraulic
oils, electric transformers or other equipment, or any asbestos containing
material that would result in material remediation costs or material penalties
to the Borrower or any of its Subsidiaries; and
(v) neither the Borrower nor any of its Subsidiaries has any material
Contingent Obligation in connection with any Release or threatened Release of a
Contaminant into the environment.
(B) For purposes of this Section 6.19 "material" means any noncompliance or
------------
other basis for liability which could reasonably be likely to subject the
Borrower or any of its Subsidiaries to liability, individually or in the
aggregate with each other basis for liability under this Section 6.19, in excess
------------
of $25,000,000.
6.20 Solvency. After giving effect to (i) the Loans to be made on the
--------
Funding Date, (ii) the other transactions contemplated by this Agreement and the
other Transaction Documents, including consummation of the Designated
Acquisition, and (iii) the payment and accrual of all transaction costs with
respect to the foregoing, the Borrower is, and the Borrower and its Subsidiaries
taken as a whole are, Solvent.
6.21 Benefits. Each of the Borrower and its Subsidiaries will benefit from
--------
the financing arrangement established by this Agreement. The Administrative
Agent and the Lenders have stated and the Borrower acknowledges that, but for
the agreement by each of the Subsidiary Guarantors to execute and deliver the
Subsidiary Guaranty, the Administrative Agent and the Lenders would not have
made available the credit facilities established hereby on the terms set forth
herein.
ARTICLE VII: COVENANTS
---------
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until all of the Obligations (other than contingent
indemnity obligations) shall have been fully and indefeasibly paid and satisfied
in cash and all financing arrangements among the Borrower and the Lenders shall
have been terminated, unless the Required Lenders shall otherwise give prior
written consent:
7.1 Reporting. The Borrower shall:
---------
(A) Financial Reporting. Furnish to the Administrative Agent (with
--------------------
sufficient copies for each of the Lenders, which the Administrative Agent shall
promptly deliver to the Lenders):
(i) Quarterly Reports. As soon as practicable, and in any event within
------------------
forty-five (45) days after the end of each of the Borrower's first three fiscal
quarters, the consolidated balance sheet of the Borrower and its Subsidiaries as
at the end of such period and the related consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and
for the period from the beginning of the then current fiscal year to the end of
such fiscal quarter, certified by the chief financial officer of the Borrower on
behalf of the Borrower as fairly presenting the consolidated financial position
of the Borrower and its Subsidiaries as at the dates indicated and the results
of their operations and cash flows for the periods indicated in accordance with
Agreement Accounting Principles, subject to normal year-end audit adjustments
and the absence of footnotes.
(ii) Annual Reports. As soon as practicable, and in any event within ninety
--------------
(90) days after the end of each fiscal year, (a) the consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year and the related consolidated and consolidating statements of
income, stockholders' equity and cash flows of the Borrower and its Subsidiaries
for such fiscal year, and in comparative form the corresponding figures for the
previous fiscal year along with consolidating schedules in form and substance
sufficient to calculate the financial covenants set forth in Section 7.4, and
-----------
(b) an audit report on the consolidated financial statements (but not the
consolidating financial statements or schedules) listed in clause (a) hereof of
----------
independent certified public accountants of recognized national standing, which
audit report shall be unqualified and shall state that such financial statements
fairly present the consolidated financial position of the Borrower and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flows for the periods indicated in conformity with Agreement Accounting
Principles and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards.
(iii) Officer's Compliance Certificate. Together with each delivery of any
---------------------------------
financial statement (a) pursuant to clauses (i) and (ii) of this Section 7.1(A),
----------- ---- --------------
an Officer's Certificate from the chief financial officer or Treasurer of the
Borrower, substantially in the form of Exhibit E attached hereto and made a part
---------
hereof, stating that (x) the representations and warranties of the Borrower
contained in Article VI hereof shall have been true and correct in all material
----------
respects as of the date of such Officer's Certificate and (y) as of the date of
such Officer's Certificate no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and status thereof and
(b) pursuant to clauses (i) and (ii) of this Section 7.1(A), a compliance
------------ ---- --------------
certificate, substantially in the form of Exhibit F attached hereto and made a
---------
part hereof, signed by the Borrower's chief financial officer or Treasurer,
setting forth calculations for the period which demonstrate compliance, when
applicable, with the provisions of Sections 7.3(A) through (R) and Section 7.4.
--------------- --- -----------
Compliance of Designated Acquisition with the Existing Credit Agreements.
--------------------------------------------------------------------------
On or prior to the date on which the Designated Acquisition shall be
consummated, evidence satisfactory to the Administrative Agent that each of the
conditions to a "Permitted Acquisition" under and as defined in each of the
Existing Credit Agreements shall have been satisfied in accordance with their
respective terms, including, without limitation, a confirmation of pro forma
---------
covenant compliance as required by Section 7.3(F) of each of the Existing Credit
--------------
Agreements.
(B) Notice of Default and Adverse Developments. Promptly upon any of the
---------------------------------------------
chief executive officer, chief operating officer, chief financial officer,
treasurer or controller of the Borrower obtaining actual knowledge (i) of any
condition or event which constitutes a Default or Unmatured Default, or becoming
aware that any Lender or Administrative Agent has given any written notice
with respect to a claimed Default or Unmatured Default under this Agreement,
(ii) that any Person having the authority to give such a notice has given any
written notice to the Borrower or any Subsidiary of the Borrower or taken any
other action with respect to a claimed default or event or condition of the type
referred to in Section 8.1(E), or (iii) that any other development, financial or
--------------
otherwise, which could reasonably be expected to have a Material Adverse Effect
has occurred specifying (a) the nature and period of existence of any such
claimed default, Default, Unmatured Default, condition or event, (b) the notice
given or action taken by such Person in connection therewith, and (c) what
action the Borrower has taken, is taking and proposes to take with respect
thereto.
(C) ERISA Notices. Deliver or cause to be delivered to the Administrative
--------------
Agent and the Lenders, at the Borrower's expense, the following information and
notices as soon as reasonably possible, and in any event:
(i) within ten (10) Business Days after any member of the Controlled Group
obtains knowledge that a Termination Event has occurred which could reasonably
be expected to subject the Borrower to liability individually or in the
aggregate in excess of $20,000,000, a written statement of the Chief Financial
Officer of the Borrower describing such Termination Event and the action, if
any, which the member of the Controlled Group has taken, is taking or proposes
to take with respect thereto, and when known, any action taken or threatened by
the IRS, DOL or PBGC with respect thereto;
(ii) within ten (10) Business Days after the filing of any funding waiver
request with the IRS, a copy of such funding waiver request and thereafter all
communications received by the Borrower or a member of the Controlled Group with
respect to such request within ten (10) Business Days after such communication
is received; and
(iii) within ten (10) Business Days after the Borrower or any member of the
Controlled Group knows or has reason to know that (a) a Multiemployer Plan has
been terminated, (b) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (c) the PBGC has instituted or
will institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, a notice describing such matter.
For purposes of this Section 7.1(C), the Borrower and any member of the
---------------
Controlled Group shall be deemed to know all facts known by the administrator of
any Plan of which the Borrower or any member of the Controlled Group is the plan
sponsor.
(D) Other Indebtedness. Deliver to the Administrative Agent (i) a copy of
-------------------
each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer's certificate) delivered by or on
behalf of the Borrower to the agents or financial institutions under the
Existing Credit Agreements or to the holders of funded Material Indebtedness,
including the Senior Notes and the investors parties to the Receivable Purchase
Facility, pursuant to the terms of the agreements governing such Indebtedness,
such delivery to be made at the same time and by the same means as such notice
or other communication is delivered to such holders, and (ii) a copy of each
notice received by the Borrower from the agents or financial institutions under
the Existing Credit Agreements or from the holders of funded Material
Indebtedness who are authorized and/or have standing to deliver such notice
pursuant to the terms of such Indebtedness, such delivery to be made promptly
after such notice is received by the Borrower.
(E) Other Reports. Deliver or cause to be delivered to the Administrative
--------------
Agent and the Lenders copies of all financial statements, reports and notices,
if any, sent by the Borrower to its securities holders or filed with the
Commission by the Borrower.
(F) Environmental Notices. As soon as possible and in any event within ten
----------------------
(10) days after receipt by the Borrower, a copy of (i) any notice or claim to
the effect that the Borrower or any of its Subsidiaries is or may be liable to
any Person as a result of the Release by the Borrower, any of its Subsidiaries,
or any other Person of any Contaminant into the environment, and (ii) any notice
alleging any violation of any Environmental, Health or Safety Requirements of
Law by the Borrower or any of its Subsidiaries if, in either case, such notice
or claim relates to an event which could reasonably be expected to subject the
Borrower and each of its Subsidiaries to liability individually or in the
aggregate in excess of $20,000,000.
(G) Amendments to Financing Facilities. Promptly after the execution
-------------------------------------
thereof, copies of all material amendments to (i) any of the documents
evidencing Indebtedness extended under the Existing Credit Agreements, (ii) any
of the Receivables Purchase Documents or (iii) the Note Purchase Agreement or
the Senior Notes.
(H) Other Information. Promptly upon receiving a request therefor from the
------------------
Administrative Agent, prepare and deliver to the Administrative Agent and the
Lenders such other information with respect to the Borrower, any of its
Subsidiaries, or their respective businesses and assets, including, without
limitation, schedules identifying and describing any Asset Sale (and the use of
the net cash proceeds thereof), as from time to time may be reasonably requested
by the Administrative Agent.
7.2 Affirmative Covenants.
----------------------
(A) Corporate Existence, Etc. Except as permitted pursuant to Section
--------------------------- -------
7.3(H), the Borrower shall, and shall cause each of its Subsidiaries to, at all
-
times maintain its existence and preserve and keep, or cause to be preserved and
kept, in full force and effect its rights and franchises material to its
businesses.
(B) Corporate Powers; Conduct of Business. The Borrower shall, and shall
----------------------------------------
cause each of its Material Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires it to
be so qualified and where the failure to be so qualified will have or would
reasonably be expected to have a Material Adverse Effect. The Borrower will,
and will cause each Material Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted unless the failure of the Borrower or its Material
Subsidiaries to carry on and conduct its business as so described would not
reasonably be expected to have a Material Adverse Effect.
(C) Compliance with Laws, Etc. The Borrower shall, and shall cause its
-----------------------------
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties, assets or
operations of such Person, and (b) obtain as needed all permits necessary for
its operations and maintain such permits in good standing unless, in either
case, failure to comply or obtain such permits would not reasonably be expected
to have a Material Adverse Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The Borrower shall pay,
----------------------------------------------
and cause each of its Subsidiaries to pay, (i) all taxes, assessments and other
governmental charges imposed upon it or on any of its properties or assets or in
respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, and (ii) all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien (other
than a Lien permitted by Section 7.3(C)) upon any of the Borrower's or such
--------------
Subsidiary's property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, however, that no such taxes,
-------- -------
assessments and governmental charges referred to in clause (i) above or claims
----------
referred to in clause (ii) above (and interest, penalties or fines relating
------------
thereto) need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with Agreement
Accounting Principles shall have been made therefor.
(E) Insurance. The Borrower shall maintain for itself and its Subsidiaries,
---------
or shall cause each of its Subsidiaries to maintain in full force and effect,
insurance policies and programs, with such deductibles or self-insurance amounts
as reflect coverage that is reasonably consistent with prudent industry practice
as determined by the Borrower.
(F) Inspection of Property; Books and Records; Discussions. The Borrower
---------------------------------------------------------
shall permit and cause each of the Borrower's Subsidiaries to permit, any
authorized representative(s) designated by either the Administrative Agent or
any Lender to visit and inspect any of the properties of the Borrower or any of
its Subsidiaries, to examine their respective financial and accounting records
and other material data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their officers and independent certified
public accountants, all upon reasonable notice and at such reasonable times
during normal business hours, as often as may be reasonably requested (provided
that an officer of the Borrower or any of its Subsidiaries may, if it so
desires, be present at and participate in any such discussion). The Borrower
shall keep and maintain, and cause each of the Borrower's Subsidiaries to keep
and maintain, in all material respects, proper books of record and account in
which entries in conformity with Agreement Accounting Principles shall be made
of all dealings and transactions in relation to their respective businesses and
activities. If a Default has occurred and is continuing, the Borrower, upon the
Administrative Agent's request, shall turn over copies of any such records to
the Administrative Agent or its representatives.
(G) ERISA Compliance. The Borrower shall, and shall cause each of the
-----------------
Borrower's Subsidiaries to, establish, maintain and operate all Plans to comply
in all material respects with the provisions of ERISA and shall operate all
Plans and Non-ERISA Commitments to comply in all material respects with the
applicable provisions of the Code, all other applicable laws, and the
regulations and interpretations thereunder and the respective requirements of
the governing documents for such Plans and Non-ERISA Commitments, except for any
noncompliance which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(H) Maintenance of Property. The Borrower shall cause all property
-------------------------
necessary for the conduct of its business or the business of any Subsidiary to
be maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary for the conduct of its business;
provided, however, that nothing in this Section 7.2(H) shall prevent the
--- ------- ---------------
Borrower from discontinuing the operation or maintenance of any of such property
--
if such discontinuance is, in the judgment of the Borrower, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Administrative Agent or the
Lenders.
(I) Environmental Compliance. (a) The Borrower and its Subsidiaries shall
-------------------------
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance will not have or is not reasonably likely to subject the
Borrower or any of its Subsidiaries, individually or in the aggregate, to
liability in excess of $25,000,000.
(J) Use of Proceeds. The Borrower shall use the proceeds of the Loans
-----------------
solely to finance the Designated Acquisition and the transaction costs and
expenses incurred in connection therewith and herewith.
(K) Addition of Subsidiary Guarantors. (a) New Subsidiaries. The Borrower
--------------------------------- ----------------
shall cause each New Subsidiary that is, at any time, a Material Domestic
Subsidiary (other than a SPV) to deliver to the Administrative Agent an executed
Supplement to become a Subsidiary Guarantor under the Subsidiary Guaranty in the
form of Exhibit G attached hereto (a "SUPPLEMENT") and appropriate corporate
----------
resolutions, opinions and other documentation in form and substance reasonably
satisfactory to the Administrative Agent, such Supplement and other
documentation to be delivered to the Administrative Agent as promptly as
possible upon the creation, acquisition of or capitalization thereof or if
otherwise necessary to remain in compliance with Section 7.3(R), but in any
--------------
event within thirty (30) days of such creation, acquisition or capitalization.
(b) Additional Material Domestic Subsidiaries. If any consolidated
--------------------------------------------
Subsidiary of the Borrower (other than a New Subsidiary to the extent addressed
in Section 7.2(K)(a) or a SPV) becomes a Material Domestic Subsidiary, the
Borrower shall cause any such Material Domestic Subsidiary to deliver to the
Administrative Agent an executed Supplement to become a Subsidiary Guarantor
and appropriate corporate resolutions, opinions and other documentation in form
and substance reasonably satisfactory to the Administrative Agent in connection
therewith, such Supplement and other documentation to be delivered to the
Administrative Agent as promptly as possible but in any event within thirty (30)
days following the date on which such consolidated Subsidiary became a Material
Domestic Subsidiary.
(c) Additional Subsidiary Guarantors. (i) If at any time an Authorized
----------------------------------
Officer of the Borrower has actual knowledge that the aggregate assets of all of
the Borrower's domestic consolidated Subsidiaries (other than SPVs) which are
not Subsidiary Guarantors exceed ten percent (10%) of Consolidated Assets of the
Borrower and its consolidated Subsidiaries (other than the SPVs), as calculated
by the Borrower, the Borrower shall cause such domestic consolidated
Subsidiaries as are necessary to reduce such aggregate assets to or below ten
percent (10%) of such Consolidated Assets to deliver to the Administrative Agent
executed Supplements to become Subsidiary Guarantors and appropriate corporate
resolutions, opinions and other documentation in form and substance reasonably
satisfactory to the Administrative Agent in connection therewith, such
Supplements and other documentation to be delivered to the Administrative Agent
as promptly as possible but in any event within thirty (30) days following the
initial date on which such aggregate assets exceed ten percent (10%) of such
Consolidated Assets.
(ii) If at any time any domestic Subsidiary of the Borrower which is not a
Subsidiary Guarantor guaranties any Indebtedness of the Borrower other than the
Indebtedness hereunder, the Borrower shall cause such Subsidiary to deliver to
the Administrative Agent an executed Supplement to become a Subsidiary Guarantor
and appropriate corporate resolutions, opinions and other documentation in
form and substance reasonably satisfactory to the Administrative Agent in
connection therewith, such Supplement and other documentation to be delivered to
the Administrative Agent concurrently with the delivery of the guaranty of such
other Indebtedness.
7.3 Negative Covenants.
-------------------
(A) Subsidiary Indebtedness. The Borrower shall not permit any of its
------------------------
Subsidiaries directly or indirectly to create, incur, assume or otherwise become
or remain directly or indirectly liable with respect to any Indebtedness,
except:
(i) Indebtedness of the Subsidiaries under the Subsidiary Guaranty;
(ii) Indebtedness in respect of guaranties executed by any Subsidiary
Guarantor with respect to any Indebtedness of the Borrower, provided such
--------
Indebtedness is not incurred by the Borrower in violation of this Agreement;
(iii) Indebtedness in respect of obligations secured by Customary Permitted
Liens;
(iv) Indebtedness constituting Contingent Obligations permitted by Section
-------
7.3(E);
-----
(v) Indebtedness arising from loans (a) from any Subsidiary to any
wholly-owned Subsidiary or (b) from the Borrower to any wholly-owned Subsidiary;
provided, that if any Subsidiary Guarantor is the obligor on such Indebtedness,
--------
such Indebtedness shall be expressly subordinate to the payment in full in cash
of the Obligations on terms satisfactory to the Administrative Agent;
(vi) Indebtedness in respect of Hedging Obligations permitted under Section
-------
7.3(O);
------
(vii) Indebtedness with respect to surety, appeal and performance bonds
obtained by any of the Borrower's Subsidiaries in the ordinary course of
business;
(viii) Indebtedness incurred in connection with the Receivables Purchase
Documents, provided, that Receivables Facility Attributed Indebtedness incurred
--------
in connection therewith does not exceed $250,000,000 in the aggregate at any
time; and
(ix) Other Indebtedness in addition to that referred to elsewhere in this
Section 7.3(A) incurred by the Borrower's Subsidiaries; provided that no Default
------------ --------
or Unmatured Default shall have occurred and be continuing at the date of such
incurrence or would result therefrom; and provided further that the aggregate
-------- -------
outstanding amount of all Indebtedness incurred by the Borrower's Subsidiaries
(other than Indebtedness incurred pursuant to clauses (i), (ii), (v), (vi) and
----------- ---- --- ----
(viii) of this Section 7.3(A)) shall not at any time exceed $250,000,000.
----- --------------
(B) Sales of Assets. Neither the Borrower nor any of its Subsidiaries shall
---------------
sell, assign, transfer, lease, convey or otherwise dispose of any property,
whether now owned or hereafter acquired, or any income or profits therefrom, or
enter into any agreement to do so, except:
(i) sales of Inventory in the ordinary course of business;
(ii) the disposition in the ordinary course of business of Equipment that is
obsolete, excess or no longer used or useful in the Borrower's or its
Subsidiaries' businesses;
(iii) any transfer of an interest in Receivables, Receivables Related
Security, accounts or notes receivable on a limited recourse basis under the
Receivables Purchase Documents, provided that such transfer qualifies as a legal
--------
sale and as a sale under Agreement Accounting Principles and that the amount of
Receivables Facility Attributed Indebtedness does not exceed $250,000,000 at any
one time outstanding; and
(iv) sales, assignments, transfers, leases, conveyances or other
dispositions of other assets (other than pursuant to clauses (i), (ii) and (iii)
----------- ---- -----
above) if such transaction (a) is for not less than fair market value, and (b)
when combined with all such other transactions (each such transaction being
valued at book value) during the period from the Closing Date, to the date of
such proposed transaction, represents the disposition of not greater than twenty
percent (20%) of the Borrower's Consolidated Assets (such Consolidated Assets
being calculated for the end of the fiscal year immediately preceding that in
which such transaction is proposed to be entered into).
(C) Liens. Neither the Borrower nor any of its Subsidiaries shall directly
-----
or indirectly create, incur, assume or permit to exist any Lien on or with
respect to any of their respective property or assets except:
(i) (a) Liens, if any, created by the Loan Documents or otherwise securing
the Obligations and (b) Liens created by the "Loan Documents" under and as
defined in each of the 5-Year Credit Agreement or the 364-Day Credit Agreement
or otherwise Securing the "Obligations" (as such terms are defined in the 5-Year
Credit Agreement or the 364-Day Credit Agreement, as the case may be),
provided, that such Liens are shared on an equal and ratable basis with the
----
Lenders with respect to the Obligations hereunder;
(ii) Customary Permitted Liens;
(iii) Liens arising under the Receivables Purchase Documents; and
(iv) other Liens, including Permitted Existing Liens, (a) securing
Indebtedness of the Borrower and/or (b) securing Indebtedness of the Borrower's
Subsidiaries as permitted pursuant to Section 7.3(A) and in an aggregate
---------------
outstanding amount not to exceed five percent (5%) of Consolidated Assets at any
time.
In addition, neither the Borrower nor any of its Subsidiaries shall become a
party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Administrative Agent for the benefit of itself and
the Holders of Obligations, as collateral for the Obligations; provided, that
--------
any agreement, note, indenture or other instrument in connection with purchase
money indebtedness (including Capitalized Leases) may prohibit the creation of a
Lien in favor of the Administrative Agent for the benefit of itself and the
Holders of Obligations on the items of property obtained with the proceeds of
such purchase money indebtedness; provided, further, that (a) each of the
-------- -------
Existing Credit Agreements and the Note Purchase Agreement in connection with
the Senior Notes may prohibit the creation of a Lien in favor of the
Administrative Agent for the benefit of itself and the Holders of Obligations,
as collateral for the Obligations unless the holders of the Senior Notes and the
obligations under the Existing Credit Agreements shall be provided with an equal
and ratable Lien and (b) the Receivables Purchase Documents may prohibit the
creation of a Lien with respect to all of the assets of the SPV and with respect
to the Receivables and Related Security of any of the Originators in favor of
the Administrative Agent for the benefit of itself and the Holders of
Obligations, as collateral for the Obligations.
(D) Investments. Except to the extent permitted pursuant to paragraph (G)
----------- -------------
below, neither the Borrower nor any of its Subsidiaries shall directly or
indirectly make or own any Investment except:
(i) Investments in cash and Cash Equivalents;
(ii) Permitted Existing Investments in an amount not greater than the amount
thereof on the Closing Date;
(iii) Investments in trade receivables or received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(iv) Investments consisting of deposit accounts maintained by the Borrower
and its Subsidiaries;
(v) Investments consisting of non-cash consideration from a sale,
assignment, transfer, lease, conveyance or other disposition of property
permitted by Section 7.3(B);
---------------
(vi) Investments in any consolidated Subsidiaries (other than joint
ventures);
(vii) Investments in joint ventures and nonconsolidated Subsidiaries in an
aggregate amount not to exceed $50,000,000.
(viii) Investments constituting Permitted Acquisitions;
(ix) Investments constituting Indebtedness permitted by Section 7.3(A) or
--------------
Contingent Obligations permitted by Section 7.3(E);
---------------
(x) Investments in the SPVs (a) required in connection with the Receivables
Purchase Documents and (b) resulting from the transfers permitted by Section
-------
7.3(B)(iii); and
--------
(xi) Investments in addition to those referred to elsewhere in this Section
-------
7.3(D) in an aggregate amount not to exceed $50,000,000.
------
(E) Contingent Obligations. None of the Borrower's Subsidiaries shall
-----------------------
directly or indirectly create or become or be liable with respect to any
Contingent Obligation, except: (i) recourse obligations resulting from
endorsement of negotiable instruments for collection in the ordinary course of
business; (ii) Permitted Existing Contingent Obligations; (iii) obligations,
warranties, and indemnities, not relating to Indebtedness of any Person, which
have been or are undertaken or made in the ordinary course of business and not
for the benefit of or in favor of an Affiliate of the Borrower or such
Subsidiary; (iv) Contingent Obligations with respect to surety, appeal and
performance bonds obtained by the Borrower or any Subsidiary in the ordinary
course of business; (v) Contingent Obligations of the Subsidiary Guarantors
under the Subsidiary Guaranty; (vi) Contingent Obligations of Subsidiaries which
are guarantors under a guaranty of the Indebtedness evidenced by the
Existing Credit Agreements, the Senior Notes and the Note Purchase Agreements;
(vii) Contingent Obligations of the Borrower or any of its Subsidiaries arising
under the Receivables Purchase Documents and (viii) Contingent Obligations
incurred in the ordinary course of business by any of the Borrower's
Subsidiaries in respect of obligations of any Subsidiary.
(F) Conduct of Business; New Subsidiaries; Acquisitions. Except as
--------------------------------------------------------
expressly provided in clause (c) in the definition of "Permitted Acquisition"
----------
below, neither the Borrower nor any of its Subsidiaries shall engage in any
business other than the businesses engaged in by the Borrower and its
Subsidiaries on the date of such transaction and any business or activities
which are substantially similar, related or incidental thereto. The Borrower
may create, acquire in a Permitted Acquisition or capitalize any Subsidiary (a
"NEW SUBSIDIARY") after the date hereof if (i) no Default or Unmatured Default
shall have occurred and be continuing or would result therefrom; (ii) after such
creation, acquisition or capitalization, all of the representations and
warranties contained herein shall be true and correct; and (iii) after such
creation, acquisition or capitalization the Borrower shall be in compliance with
the terms of Sections 7.2(K) and 7.3(R).
---------------- -------
Without in any way limiting the foregoing, the Borrower shall not make any
Acquisitions, other than (x) the Designated Acquisition, subject to the
conditions specified in this Agreement and (y) other Acquisitions meeting the
following requirements or otherwise approved by the Required Lenders (each of
such Designated Acquisition or any other Acquisition complying with the
following requirements being referred to as a "PERMITTED ACQUISITION"):
(a) no Default or Unmatured Default shall have occurred and be continuing or
would result from such Acquisition or the incurrence of any Indebtedness in
connection therewith, and all of the representations and warranties contained
herein shall be true and correct on and as of the date such Acquisition with the
same effect as though made on and as of such date;
(b) the purchase is consummated pursuant to a negotiated acquisition
agreement on a non-hostile basis pursuant to an acquisition agreement approved
by the board of directors or other applicable governing body of the Seller prior
to the commencement thereof;
(c) the businesses being acquired shall be consumer product companies or
other businesses that are substantially similar, related or incidental to the
businesses or activities engaged in by the Borrower and its Subsidiaries as of
the Closing Date, as well as suppliers to or distributors of products similar to
those of the Borrower and its Subsidiaries; provided, however, that the Borrower
-------- -------
and its Subsidiaries shall be permitted to acquire businesses that do not
satisfy the foregoing criteria in this clause (c) so long as the aggregate
----------
purchase price for all such acquisitions does not exceed five percent (5%) of
the Borrower's consolidated tangible net assets (on a pro forma basis) as of the
date of the consummation of such Acquisition; and
(d) prior to each such Acquisition, the Borrower shall determine that after
giving effect to such Acquisition and the incurrence of any Indebtedness by the
Borrower or any of its Subsidiaries, to the extent permitted by Section 7.3(A),
--------------
in connection therewith, on a pro forma basis using historical audited and
--- -----
reviewed unaudited financial statements obtained from the seller, broken down by
fiscal quarter in the Borrower's reasonable judgment, as if the Acquisition and
such incurrence of Indebtedness had occurred on the first day of the
twelve-month period ending on the last day of the Borrower's most recently
completed fiscal quarter, the Borrower would have been in compliance with the
financial covenants in Section 7.4 and not otherwise in Default.
------------
(G) Transactions with Shareholders and Affiliates. Except for (a) the
-------------------------------------------------
transactions set forth on Schedule 7.3(G), (b) Permitted Receivables Transfers
---------------
and (c) Investments permitted by Section 7.3(D), neither the Borrower nor any of
--------------
its Subsidiaries shall directly or indirectly enter into or permit to exist
any transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder or
holders of any of the Equity Interests of the Borrower, or with any Affiliate of
the Borrower which is not its Subsidiary, on terms that are less favorable to
the Borrower or any of its Subsidiaries, as applicable, than those that might be
obtained in an arm's length transaction at the time from Persons who are not
such a holder or Affiliate.
(H) Restriction on Fundamental Changes. Neither the Borrower nor any of its
----------------------------------
Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of the Borrower's or any such Subsidiary's business or
property, whether now or hereafter acquired, except (i) transactions permitted
under Sections 7.3(B) or 7.3(F), and (ii) a Subsidiary of the Borrower may be
---------------- ------
merged into, liquidated into or consolidated with the Borrower (in which case
the Borrower shall be the surviving corporation) or any wholly-owned Subsidiary
of the Borrower, provided if a Subsidiary Guarantor is merged into, liquidated
--------
into or consolidated with another Subsidiary of the Borrower, the surviving
Subsidiary shall also be or shall become a Subsidiary Guarantor.
(I) Sales and Leasebacks. Neither the Borrower nor any of its Subsidiaries
---------------------
shall become liable, directly, by assumption or by Contingent Obligation, with
respect to any lease, whether an operating lease or a Capitalized Lease, of any
property (whether real or personal or mixed), (i) which it or one of its
Subsidiaries sold or transferred or is to sell or transfer to any other Person,
or (ii) which it or one of its Subsidiaries intends to use for substantially the
same purposes as any other property which has been or is to be sold or
transferred by it or one of its Subsidiaries to any other Person in connection
with such lease, unless in either case the sale involved is not prohibited under
Section 7.3(B) and the lease involved is not prohibited under Section 7.3(A).
--------------- --------------
(J) Margin Regulations; Use of Proceeds. Neither the Borrower nor any of
--------------------------------------
its Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement (i) to purchase or carry Margin Stock or (ii) for
any purpose other than to finance the Designated Acquisition and the transaction
costs and expenses incurred in connection therewith.
(K) ERISA. The Borrower shall not:
-----
(i) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Code), with respect to any Benefit Plan,
whether or not waived;
(ii) terminate, or permit any Controlled Group member to terminate, any
Benefit Plan which would result in liability of the Borrower or any Controlled
Group member under Title IV of ERISA;
(iii) fail, or permit any Controlled Group member to fail, to pay any
required installment or any other payment required under Section 412 of the Code
on or before the due date for such installment or other payment; or
(iv) permit any unfunded liabilities with respect to any Foreign Pension
Plan;
except where such transactions, events, circumstances, or failures are not,
individually or in the aggregate, reasonably expected to result in liability
individually or in the aggregate in excess of $25,000,000 or have a Material
Adverse Effect.
(L) Corporate Documents. Neither the Borrower nor any of its Subsidiaries
--------------------
shall amend, modify or otherwise change any of the terms or provisions in any of
their respective constituent documents as in effect on the date hereof in
any manner adverse to the interests of the Lenders, without the prior written
consent of the Required Lenders.
(M) Fiscal Year. Neither the Borrower nor any of its consolidated
------------
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
-
twelve-month period ending September 30 of each year.
(N) Subsidiary Covenants. The Borrower will not, and will not permit any
---------------------
Subsidiary to, create or otherwise cause to become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary to pay
dividends or make any other distribution on its stock, redeem or repurchase its
stock, make any other similar payment or distribution, pay any Indebtedness or
other Obligation owed to the Borrower or any other Subsidiary, make loans or
advances or other Investments in the Borrower or any other Subsidiary, to sell,
transfer or otherwise convey any of its property to the Borrower or any other
Subsidiary or merge, consolidate with or liquidate into the Borrower or any
other Subsidiary other than pursuant to the Receivables Purchase Documents.
(O) Hedging Obligations. The Borrower shall not and shall not permit any of
-------------------
its Subsidiaries to enter into any Hedging Arrangements other than Hedging
Arrangements entered into by the Borrower or its Subsidiaries pursuant to which
the Borrower or such Subsidiary has hedged its or its Subsidiaries' reasonably
estimated interest rate, foreign currency or commodity exposure and which are of
a non-speculative nature.
(P) Issuance of Disqualified Stock. From and after the Closing Date,
---------------------------------
neither the Borrower, nor any of its Subsidiaries shall issue any Disqualified
Stock. All issued and outstanding Disqualified Stock shall be treated as
Indebtedness for borrowed money for all purposes of this Agreement, and the
amount of such deemed Indebtedness shall be the aggregate amount of the
liquidation preference of such Disqualified Stock.
(Q) Non-Guarantor Subsidiaries. The Borrower will not at any time permit
---------------------------
the aggregate assets of all of its domestic consolidated Subsidiaries (other
than the SPVs) which are not Subsidiary Guarantors to exceed ten percent (10%)
of Consolidated Assets of the Borrower and its consolidated Subsidiaries (other
than the SPVs). The Borrower shall not permit any of its Subsidiaries to
guaranty any Indebtedness of the Borrower other than the Indebtedness hereunder
unless each such Subsidiary is a Subsidiary Guarantor under the Subsidiary
Guaranty.
7.4 Financial Covenants. The Borrower shall comply with the following:
--------------------
(A) Maximum Leverage Ratio. The Borrower shall not permit the ratio (the
------------------------
"LEVERAGE RATIO") of (i) the sum of (a) all Indebtedness of the Borrower and its
Subsidiaries to (ii) EBITDA at any time to be greater than 3.00 to 1.00.
The Leverage Ratio shall be calculated, in each case, determined as of the last
day of each fiscal quarter based upon (a) for Indebtedness, Indebtedness as of
the last day of each such fiscal quarter; and (b) for EBITDA, the actual amount
for the four-quarter period ending on such day, calculated, with respect to
Permitted Acquisitions, on a pro forma basis using unadjusted historical audited
--- -----
and reviewed unaudited financial statements obtained from the seller (with the
EBITDA component thereof broken down by fiscal quarter in the Borrower's
reasonable judgment).
(B) Minimum Interest Expense Coverage Ratio. The Borrower shall maintain a
----------------------------------------
ratio (the "INTEREST EXPENSE COVERAGE RATIO") for any applicable period of (a)
EBIT for such period to (b) Interest Expense for such period of greater than
3.00 to 1.00 for each fiscal quarter. The Interest Expense Coverage Ratio shall
be calculated as of the last day of each fiscal quarter for the four-quarter
period ending on such day.
ARTICLE VIII: DEFAULTS
--------
8.1 Defaults. Each of the following occurrences shall constitute a Default
--------
under this Agreement:
(A) Failure to Make Payments When Due. The Borrower shall (i) fail to pay
-----------------------------------
when due any of the Obligations consisting of principal with respect to the
Loans or (ii) shall fail to pay within five (5) Business Days of the date when
due any of the other Obligations under this Agreement or the other Loan
Documents.
(B) Breach of Certain Covenants. The Borrower shall fail duly and
------------------------------
punctually to perform or observe any agreement, covenant or obligation binding
-
on the Borrower or there shall otherwise be a breach of any covenant under:
(i) Sections 7.1 or 7.2 (other than Section 7.2(K)) and such failure or
------------- --- --------------
breach shall continue unremedied for thirty (30) days after the earlier to occur
of (a) the date on which written notice from the Administrative Agent or
any Lender is received by the Borrower of such breach and (b) the date on which
a member of the Senior Management Team of the Borrower or any Subsidiary
Guarantor had knowledge of the existence of such breach or should have known of
the existence of such breach; or
(ii) Sections 7.2(K), 7.3 or 7.4.
---------------- --- ---
(C) Breach of Representation or Warranty. Any representation or warranty
---------------------------------------
made or deemed made by the Borrower to the Administrative Agent or any Lender
herein or by the Borrower or any of its Subsidiaries in any of the other Loan
Documents or in any statement or certificate at any time given by any such
Person pursuant to any of the Loan Documents shall be false or misleading in any
material respect on the date as of which made (or deemed made).
(D) Other Defaults. The Borrower shall default in the performance of or
---------------
compliance with any term contained in this Agreement (other than as covered by
paragraphs (A) or (B) of this Section 8.1), or the Borrower or any of its
-------------- --- ------------
Subsidiaries shall default in the performance of or compliance with any term
-----
contained in any of the other Loan Documents, and such default shall continue
--
for thirty (30) days after the earlier to occur of (a) the date on which written
-
notice from the Administrative Agent or any Lender is received by the Borrower
of such breach and (b) the date on which a member of the Senior Management Team
of the Borrower or any Subsidiary Guarantor had knowledge of the existence of
such breach or should have known of the existence of such breach.
(E) Default as to Other Indebtedness. The Borrower or any of its
------------------------------------
Subsidiaries shall fail to make any payment when due (whether by scheduled
--
maturity, required prepayment, acceleration, demand or otherwise), beyond any
period of grace provided, with respect to (i) any Indebtedness incurred pursuant
to the Existing Credit Agreements or (ii) any other Indebtedness (other than
Indebtedness hereunder) which individually or together with other such
Indebtedness as to which any such failure exists (other than hereunder or under
the Existing Credit Agreements) constitutes Material Indebtedness; or any
breach, default or event of default (including any "Termination Event", under
and as defined in the Receivables Purchase Documents, or any event of like
import in connection with the Receivables Purchase Facility) shall occur, or any
other condition shall exist under any instrument, agreement or indenture
pertaining to any such Indebtedness under the Existing Credit Agreements or
Material Indebtedness having such aggregate outstanding principal amount, beyond
any period of grace, if any, provided with respect thereto, if the effect
thereof is to cause an acceleration, mandatory redemption, a requirement that
the Borrower offer to purchase such Indebtedness under the Existing Credit
Agreements or Material Indebtedness or other required repurchase of such
Indebtedness under the Existing Credit Agreements or Material Indebtedness, or
permit the holder(s) of such Indebtedness under the Existing Credit Agreements
or Material Indebtedness to accelerate the maturity of any such Indebtedness
under the Existing Credit Agreements or Material Indebtedness or require a
redemption or other repurchase of such Indebtedness under the Existing Credit
Agreements or Material Indebtedness; or any such Indebtedness under the Existing
Credit Agreements or Material Indebtedness shall be otherwise declared to be due
and payable (by acceleration or otherwise) or required to be prepaid, redeemed
or otherwise repurchased by the Borrower or any of its Subsidiaries (other than
by a regularly scheduled required prepayment) prior to the stated maturity
thereof.
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
---------------------------------------------------------
(i) An involuntary case shall be commenced against the Borrower or any of
the Borrower's Material Subsidiaries and the petition shall not be dismissed,
stayed, bonded or discharged within sixty (60) days after commencement of the
case; or a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Borrower or any of the Borrower's Material
Subsidiaries in an involuntary case, under any applicable bankruptcy, insolvency
or other similar law now or hereinafter in effect; or any other similar
relief shall be granted under any applicable federal, state, local or foreign
law.
(ii) A decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over the Borrower or any of the Borrower's
Material Subsidiaries or over all or a substantial part of the property of the
Borrower or any of the Borrower's Material Subsidiaries shall be entered; or an
interim receiver, trustee or other custodian of the Borrower or any of the
Borrower's Material Subsidiaries or of all or a substantial part of the property
of the Borrower or any of the Borrower's Material Subsidiaries shall be
appointed or a warrant of attachment, execution or similar process against any
substantial part of the property of the Borrower or any of the Borrower's
Material Subsidiaries shall be issued and any such event shall not be stayed,
dismissed, bonded or discharged within sixty (60) days after entry, appointment
or issuance.
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower or any
---------------------------------------------------
of the Borrower's Material Subsidiaries shall (i) commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (ii) consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, (iii) consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property, (iv) make any assignment for the benefit of creditors, (v)
take any corporate action to authorize any of the foregoing or (vi) is
generally not paying, or admits in writing its inability to pay, its debts as
they become due.
(H) Judgments and Attachments. Any money judgment(s) (other than a money
---------------------------
judgment covered by insurance as to which the insurance company has not
disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against the Borrower or any of its Subsidiaries
or any of their respective assets involving in any single case or in the
aggregate an amount in excess of $30,000,000 is or are entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days or
in any event later than fifteen (15) days prior to the date of any proposed sale
thereunder.
(I) Dissolution. Any order, judgment or decree shall be entered against the
-----------
Borrower decreeing its involuntary dissolution or split up and such order shall
remain undischarged and unstayed for a period in excess of sixty (60) days; or
the Borrower shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.
(J) Loan Documents. At any time, for any reason, any Loan Document as a
---------------
whole that materially affects the ability of the Administrative Agent, or any of
the Lenders to enforce the Obligations ceases to be in full force and effect or
the Borrower or any of the Borrower's Subsidiaries party thereto seeks to
repudiate its obligations under any Loan Document.
(K) Termination Event. Any Termination Event occurs which the Required
------------------
Lenders believe is reasonably likely to subject either the Borrower or any of
its Subsidiaries to liability individually or in the aggregate in excess of
$25,000,000.
(L) Waiver of Minimum Funding Standard. If the plan administrator of any
-------------------------------------
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and the Required Lenders believe
the substantial business hardship upon which the application for the waiver is
based could reasonably be expected to subject either the Borrower or any of its
Subsidiaries to liability individually or in the aggregate in excess of
$25,000,000.
(M) Change of Control. A Change of Control shall occur.
-------------------
(N) Hedging Agreements. Nonpayment by the Borrower of any material
-------------------
obligation under any Hedging Agreement or the breach by the Borrower of any
material term, provision or condition contained in any such Hedging Agreement.
(O) Environmental Matters. The Borrower or any of its Subsidiaries shall be
---------------------
the subject of any proceeding or investigation pertaining to (i) the Release by
the Borrower or any of its Subsidiaries of any Contaminant into the environment,
(ii) the liability of the Borrower or any of its Subsidiaries arising from the
Release by any other Person of any Contaminant into the environment, or (iii)
any violation of any Environmental, Health or Safety Requirements of Law which
by the Borrower or any of its Subsidiaries, which, in any case, has or is
reasonably likely to subject either the Borrower or its Subsidiaries to
liability individually or in the aggregate in excess of $25,000,000.
(P) Subsidiary Guarantor Revocation. Any Subsidiary Guarantor shall
---------------------------------
terminate or revoke any of its obligations under the Subsidiary Guaranty or
breach any of the material terms of such Subsidiary Guaranty.
(Q) Receivables Purchase Document Events. Other than at the request of the
-------------------------------------
Borrower, the "Termination Date" or an event of like import resulting in the
termination of the reinvestment of collections or proceeds of Receivables and
Related Security shall occur under any Receivables Purchase Document.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.3.
------------
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND
--------------------------------------------------------------
REMEDIES
--
9.1 Termination of Commitments; Acceleration. If any Default described in
------------------------------------------
Section 8.1(F), (G) or (I) occurs with respect to the Borrower and the
-------------- --- ---
obligations of the Lenders to make Loans hereunder shall automatically terminate
--------
and the Obligations shall immediately become due and payable without any
election or action on the part of the Administrative Agent or any Lender. If
any other Default occurs, the Required Lenders may terminate or suspend the
obligations of the Lenders to make Loans hereunder or declare the Obligations to
be due and payable, or both, whereupon the Obligations shall become immediately
due and payable, without presentment, demand, protest or notice of any kind, all
of which the Borrower expressly waives.
9.2 Defaulting Lender. In the event that any Lender fails to fund its Pro
------------------
Rata Share of the Advance requested or deemed requested by the Borrower, which
such Lender is obligated to fund under the terms of this Agreement (the funded
portion of the Advance being hereinafter referred to as a "NON PRO RATA LOAN"),
until the earlier of such Lender's cure of such failure and the termination of
the Commitments, the proceeds of all amounts thereafter repaid to the
Administrative Agent by the Borrower and otherwise required to be applied to
such Lender's share of all other Obligations pursuant to the terms of this
Agreement shall be advanced to the Borrower by the Administrative Agent on
behalf of such Lender to cure, in full or in part, such failure by such Lender,
but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything in this
Agreement to the contrary:
(i) the foregoing provisions of this Section 9.2 shall apply only with
------------
respect to the proceeds of payments of Obligations and shall not affect the
conversion or continuation of Loans pursuant to Section 2.9;
------------
(ii) any such Lender shall be deemed to have cured its failure to fund its
Pro Rata Share, of the Advance at such time as an amount equal to such Lender's
original Pro Rata Share of the requested principal portion of the Advance is
fully funded to the Borrower, whether made by such Lender itself or by operation
of the terms of this Section 9.2, and whether or not the Non Pro Rata Loan with
-----------
respect thereto has been repaid, converted or continued;
(iii) amounts advanced to the Borrower to cure, in full or in part, any such
Lender's failure to fund its Pro Rata Share of the Advance ("CURE LOANS") shall
bear interest at the rate applicable to Floating Rate Loans in effect from time
to time, and for all other purposes of this Agreement shall be treated as if
they were Floating Rate Loans;
(iv) regardless of whether or not a Default has occurred or is continuing,
and notwithstanding the instructions of the Borrower as to its desired
application, all repayments of principal which, in accordance with the other
terms of this Agreement, would be applied to the outstanding Floating Rate Loans
shall be applied first, ratably to all Floating Rate Loans constituting Non Pro
-----
Rata Loans, second, ratably to Floating Rate Loans other than those constituting
------
Non Pro Rata Loans or Cure Loans and, third, ratably to Floating Rate Loans
-----
constituting Cure Loans;
(v) for so long as and until the earlier of any such Lender's cure of the
failure to fund its Pro Rata Share of the Advance and the termination of the
Commitments, the term "Required Lenders" for purposes of this Agreement shall
mean Lenders (excluding all Lenders whose failure to fund their respective Pro
Rata Share of the Advance have not been so cured) whose Pro Rata Shares
represent greater than fifty percent (50%) of the aggregate Pro Rata Shares of
such Lenders; and
(vi) for so long as and until any such Lender's failure to fund its Pro Rata
Share of the Advance is cured in accordance with Section 9.2(ii), such Lender
---------------
shall not be entitled to any Facility Fees with respect to its Commitment, which
Facility Fees shall accrue in favor of the Lenders which have funded their
respective Pro Rata Share of the Advance, shall be allocated among such
performing Lenders ratably based upon their relative Commitments or Loans, and
shall be calculated based upon the average amount by which the aggregate
Commitments of such performing Lenders exceeds the outstanding principal amount
of the Loans owing to such performing Lenders.
9.3 Amendments. Subject to the provisions of this Article IX, the Required
---------- ----------
Lenders (or the Administrative Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for
the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
-------- -------
agreement shall, without the consent of each Lender (which is not a defaulting
Lender under the provisions of Section 9.2) affected thereby:
------------
(i) Postpone or extend the Termination Date or any other date fixed for any
payment of principal of, or interest on, the Loans or any fees or other amounts
payable to such Lender (other than any modifications of the provisions relating
to amounts, timing or application of prepayments of the Loans and other
Obligations, which modifications shall require the approval only of the Required
Lenders).
(ii) Reduce the principal amount of any Loans, or reduce the rate or extend
the time of payment of interest or fees thereon (other than (a) a waiver of the
application of the default rate of interest pursuant to Section 2.10 hereof and
------------
(b) as a result of a change (x) in the definition of Leverage Ratio or any of
the components thereof or the method of calculation thereof as set forth herein
or (y) in the definition of "Leverage Ratio" or any of the components thereof or
the method of calculation thereof as set forth in the Existing 5-Year Credit
Agreement).
(iii) Reduce the percentage specified in the definition of Required Lenders
or any other percentage of Lenders specified to be the applicable percentage in
this Agreement to act on specified matters or amend the definitions of "Required
Lenders" or "Pro Rata Share".
(iv) Increase the amount of the Commitment of such Lender hereunder or
increase such Lender's Pro Rata Share.
(v) Permit the Borrower to assign its rights under this Agreement.
(vi) other than pursuant to a transaction permitted by the terms of this
Agreement, release any guarantor from its obligations under the Subsidiary
Guaranty.
(vii) Amend this Section 9.3.
------------
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent. The Administrative Agent may waive payment of the fee required under
Section 13.3(B) without obtaining the consent of any of the Lenders.
-------------
9.4 Preservation of Rights. No delay or omission of the Lenders or the
------------------------
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a Default or
the inability of the Borrower to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or partial exercise
of any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to Section 9.3, and
-----------
then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until all of the
Obligations (other than contingent indemnity obligations) shall have been fully
and indefeasibly paid and satisfied in cash and all financing arrangements among
the Borrower and the Lenders shall have been terminated.
ARTICLE X: GENERAL PROVISIONS
-------------------
10.1 Survival of Representations. All representations and warranties of the
---------------------------
Borrower contained in this Agreement shall survive delivery of this
Agreement and the making of the Loans herein contemplated.
10.2 Governmental Regulation. Anything contained in this Agreement to the
------------------------
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 Performance of Obligations. The Borrower agrees that after the
----------------------------
occurrence and during the continuance of a Default, the Administrative Agent
may, but shall have no obligation to, make any payment or perform any act
required of the Borrower under any Loan Document to the extent the
Administrative Agent determines that such action shall be necessary or advisable
in order to protect or preserve the rights of the Lenders hereunder. The
Administrative Agent shall use its reasonable efforts to give the Borrower
notice of any action taken under this Section 10.3 prior to the taking of such
------------
action or promptly thereafter provided the failure to give such notice shall not
affect the Borrower's obligations in respect thereof. The Borrower agrees to
pay the Administrative Agent, upon demand, the principal amount of all funds
advanced by the Administrative Agent under this Section 10.3, together with
------------
interest thereon at the rate from time to time applicable to Floating Rate Loans
from the date of such advance until the outstanding principal balance thereof is
paid in full. If the Borrower fails to make payment in respect of any such
advance under this Section 10.3 within one (1) Business Day after the date the
------------
Borrower receives written demand therefor from the Administrative Agent, the
Administrative Agent shall promptly notify each Lender and each Lender agrees
that it shall thereupon make available to the Administrative Agent, in Dollars
in immediately available funds, the amount equal to such Lender's Pro Rata Share
of such advance. If such funds are not made available to the Administrative
Agent by such Lender within one (1) Business Day after the Administrative
Agent's demand therefor, the Administrative Agent will be entitled to recover
any such amount from such Lender together with interest thereon at the Federal
Funds Effective Rate for each day during the period commencing on the date of
such demand and ending on the date such amount is received. The failure of any
Lender to make available to the Administrative Agent its Pro Rata Share of any
such unreimbursed advance under this Section 10.3 shall neither relieve any
------------
other Lender of its obligation hereunder to make available to the Administrative
Agent such other Lender's Pro Rata Share of such advance on the date such
payment is to be made nor increase the obligation of any other Lender to make
such payment to the Administrative Agent. All outstanding principal of, and
interest on, advances made under this Section 10.3 shall constitute Obligations
------------
subject to the terms of this Agreement until paid in full by the Borrower.
10.4 Headings. Section headings in the Loan Documents are for convenience
--------
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
10.5 Entire Agreement. The Loan Documents embody the entire agreement and
-----------------
understanding among the Borrower, the Administrative Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject matter thereof
except as specifically set forth in a side letter among the Administrative
Agent, the Syndication Agent, the Arrangers and the Borrower, dated as of the
Closing Date.
10.6 Several Obligations; Benefits of this Agreement. The respective
----------------------------------------------------
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
10.7 Expenses; Indemnification.
--------------------------
(A) Expenses. The Borrower shall reimburse the Administrative Agent and the
--------
Arrangers for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees and time charges
of attorneys and paralegals for the Administrative Agent, which attorneys and
paralegals may be employees of the Administrative Agent) paid or incurred by the
Administrative Agent or the Arrangers in connection with the preparation,
negotiation, execution, delivery, syndication, review, amendment modification
and, after the occurrence and during the continuance of a Default or an
Unmatured Default, administration of the Loan Documents. The Borrower also
agrees to reimburse the Administrative Agent and the Arrangers and the Lenders
for any reasonable costs and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and paralegals for
the Administrative Agent and the Arrangers and the Lenders, which attorneys and
paralegals may be employees of the Administrative Agent or the Arrangers or the
Lenders) paid or incurred by the Administrative Agent or the Arrangers or any
Lender in connection with the collection of the Obligations and enforcement of
the Loan Documents; provided, that after the occurrence and during the
--------
continuance of a Default, the Borrower agrees to reimburse the Administrative
Agent, the Arrangers and the Lenders for all such costs and out-of-pocket
expenses, whether or not reasonable.
(B) Indemnity. The Borrower further agrees to defend, protect, indemnify,
---------
and hold harmless the Administrative Agent, the Arrangers, the Syndication Agent
and each and all of the Lenders and each of their respective Affiliates, and
each of such Administrative Agent's, Syndication Agent's, Arranger's, Lender's,
or Affiliate's respective officers, directors, trustees, investment advisors,
employees, attorneys and agents (including, without limitation, those retained
in connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in Article V) (collectively, the "INDEMNITEES") from and
---------
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses of any kind or nature
whatsoever (including, without limitation, the fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of:
(i) this Agreement, the other Loan Documents or any of the Transaction
Documents, or any act, event or transaction related or attendant thereto or to
the Transactions and the making of the Loans hereunder, the management of such
Loans, the use or intended use of the proceeds of the Loans hereunder, or any of
the other transactions contemplated by the Transaction Documents; or
(ii) any liabilities, obligations, responsibilities, losses, damages,
personal injury, death, punitive damages, economic damages, consequential
damages, treble damages, intentional, willful or wanton injury, damage or threat
to the environment, natural resources or public health or welfare, costs and
expenses (including, without limitation, attorney, expert and consulting fees
and costs of investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known or
unknown, absolute or contingent, past, present or future relating to violation
of any Environmental, Health or Safety Requirements of Law arising from or in
connection with the past, present or future operations of the Borrower, its
Subsidiaries or any of their respective predecessors in interest, or, the past,
present or future environmental, health or safety condition of any respective
property of the Borrower or its Subsidiaries, the presence of
asbestos-containing materials at any respective property of the Borrower or its
Subsidiaries or the Release or threatened Release of any Contaminant into the
environment (collectively, the "INDEMNIFIED MATTERS");
provided, however, the Borrower shall have no obligation to an Indemnitee
-------- -------
hereunder with respect to Indemnified Matters caused by or resulting from the
------
willful misconduct or gross negligence of such Indemnitee with respect to the
--
Loan Documents, as determined by the final non-appealed judgment of a court of
--
competent jurisdiction. If the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it is violative
of any law or public policy, the Borrower shall contribute the maximum portion
which it is permitted to pay and satisfy under applicable law, to the payment
and satisfaction of all Indemnified Matters incurred by the Indemnitees.
Each Indemnitee, with respect to any action against it in respect of which
indemnity may be sought under this Section, shall give written notice of the
commencement of such action to the Borrower within a reasonable time after such
Indemnitee is made a party to such action. Upon receipt of any such notice by
the Borrower, unless such Indemnitee shall be advised by its counsel that there
are or may be legal defenses available to such Indemnitee that are different
from, in addition to, or in conflict with, the defenses available to the
Borrower or any of its Subsidiaries, the Borrower may participate with the
Indemnitee in the defense of such Indemnified Matter, including the employment
of counsel consented to by such Indemnitee (which consent shall not be
unreasonably withheld); provided, however, nothing provided herein shall entitle
-------- -------
(a) the Borrower or any of its Subsidiaries to assume the defense of such
Indemnified Matter or (b) any Indemnitee to effect any settlement in respect of
any indemnified matter without the Borrower's consent, such consent not to be
unreasonably withheld.
(C) Waiver of Certain Claims; Settlement of Claims. The Borrower further
-------------------------------------------------
agrees to assert no claim against any of the Indemnitees on any theory of
liability seeking consequential, special, indirect, exemplary or punitive
damages. No settlement of any claim asserted against or likely to be asserted
against an Indemnitee shall be entered into by the Borrower or any if its
Subsidiaries with respect to any claim, litigation, arbitration or other
proceeding relating to or arising out of the transactions evidenced by this
Agreement, the other Loan Documents or in connection with the Transactions
(whether or not the Administrative Agent or any Lender or any Indemnitee is a
party thereto) unless such settlement releases such Indemnitee from any and all
liability with respect thereto.
(D) Survival of Agreements. The obligations and agreements of the Borrower
-----------------------
under this Section 10.7 shall survive the termination of this Agreement.
-------------
10.8 Numbers of Documents. All statements, notices, closing documents, and
---------------------
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
10.9 Accounting. Except as provided to the contrary herein, all accounting
----------
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles. If
any changes in generally accepted accounting principles are hereafter required
or permitted and are adopted by the Borrower or any of its Subsidiaries with the
agreement of its independent certified public accountants and such changes
result in a change in the method of calculation of any of the financial
covenants, tests, restrictions or standards herein or in the related definitions
or terms used therein ("ACCOUNTING CHANGES"), the parties hereto agree, at the
Borrower's request, to enter into negotiations, in good faith, in order to amend
such provisions in a credit neutral manner so as to reflect equitably such
changes with the desired result that the criteria for evaluating the Borrower's
and its Subsidiaries' financial condition shall be the same after such changes
as if such changes had not been made; provided, however, until such provisions
-------- -------
are amended in a manner reasonably satisfactory to the Administrative Agent and
the Required Lenders, no Accounting Change shall be given effect in such
calculations and all financial statements and reports required to be delivered
hereunder shall be prepared in accordance with Agreement Accounting Principles
without taking into account such Accounting Changes. In the event such
amendment is entered into, all references in this Agreement to Agreement
Accounting Principles shall mean generally accepted accounting principles as of
the date of such amendment.
10.10 Severability of Provisions. Any provision in any Loan Document that
----------------------------
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
10.11 Nonliability of Lenders. The relationship between the Borrower and
-------------------------
the Lenders and the Administrative Agent shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender shall have any
fiduciary responsibilities to the Borrower. Neither the Administrative Agent
nor any Lender undertakes any responsibility to the Borrower to review or inform
the Borrower of any matter in connection with any phase of the Borrower's
business or operations.
10.12 GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT, ON
--------------
BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND
AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE BORROWER AND THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
10.13 CONSENT TO JURISDICTION; JURY TRIAL.
---------------------------------------
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
----------------------- --------------
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM
IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY
BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE
--------------
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT,
-------------------
ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED
AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH
PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE BORROWER OR (2) IN ORDER TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. THE
BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON ANY SECURITY FOR THE OBLIGATIONS
OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON BUT SHALL
ONLY BE PERMITTED TO BRING ANY SUCH PERMISSIVE COUNTERCLAIM IN A PROCEEDING
BROUGHT PURSUANT TO CLAUSE (A). THE BORROWER WAIVES ANY OBJECTION THAT IT MAY
-----------
HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
---------------
(C) VENUE. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
-----
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
----- --- ----------
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
--------------------
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
-------------------
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF
SECTION 10.7 AND THIS SECTION 10.13, WITH ITS COUNSEL.
------------- --------------
10.14 Subordination of Intercompany Indebtedness. The Borrower agrees that
-------------------------------------------
any and all claims of the Borrower against any of its Subsidiaries that is a
Subsidiary Guarantor with respect to any "Intercompany Indebtedness" (as
hereinafter defined), any endorser, obligor or any other guarantor of all or any
part of the Obligations, or against any of its properties shall be
subordinate and subject in right of payment to the prior payment, in full and in
cash, of all Obligations and Hedging Obligations under Hedging Agreements;
provided that, and not in contravention of the foregoing, so long as no Default
---
has occurred and is continuing the Borrower may make loans to and receive
payments in the ordinary course with respect to such Intercompany Indebtedness
from each such Subsidiary Guarantor to the extent permitted by the terms of this
Agreement and the other Loan Documents. Notwithstanding any right of the
Borrower to ask, demand, xxx for, take or receive any payment from any
Subsidiary Guarantor, all rights, liens and security interests of the Borrower,
whether now or hereafter arising and howsoever existing, in any assets of any
Subsidiary Guarantor shall be and are subordinated to the rights of the holders
of the Obligations and the Administrative Agent in those assets. The Borrower
shall have no right to possession of any such asset or to foreclose upon any
such asset, whether by judicial action or otherwise, unless and until all of the
Obligations (other than contingent indemnity obligations) and the Hedging
Obligations under Hedging Agreements shall have been fully paid and satisfied
(in cash) and all financing arrangements pursuant to any Loan Document or
Hedging Agreement among the Borrower and the holders of the Obligations (or any
affiliate thereof) have been terminated. If all or any part of the assets of
any Subsidiary Guarantor, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of such Subsidiary
Guarantor, whether partial or complete, voluntary or involuntary, and whether by
reason of liquidation, bankruptcy, arrangement, receivership, assignment for the
benefit of creditors or any other action or proceeding, or if the business of
any such Subsidiary Guarantor is dissolved or if substantially all of the assets
of any such Subsidiary Guarantor are sold, then, and in any such event (such
events being herein referred to as an "INSOLVENCY EVENT"), any payment or
distribution of any kind or character, either in cash, securities or other
property, which shall be payable or deliverable upon or with respect to any
indebtedness of any Subsidiary Guarantor to the Borrower ("INTERCOMPANY
INDEBTEDNESS") shall be paid or delivered directly to the Administrative Agent
for application on any of the Obligations and Hedging Obligations under the
Hedging Agreements, due or to become due, until such Obligations and Hedging
Obligations (other than contingent indemnity obligations) shall have first been
fully paid and satisfied (in cash). Should any payment, distribution, security
or instrument or proceeds thereof be received by the Borrower upon or with
respect to the Intercompany Indebtedness after an Insolvency Event prior to the
satisfaction of all of the Obligations (other than contingent indemnity
obligations) and Hedging Obligations under Hedging Agreements and the
termination of all financing arrangements pursuant to any Loan Document or
Hedging Agreement among the Borrower and the holders of Obligations (and their
affiliates), the Borrower shall receive and hold the same in trust, as trustee,
for the benefit of the holders of the Obligations and such Hedging Obligations
and shall forthwith deliver the same to the Administrative Agent, for the
benefit of such Persons, in precisely the form received (except for the
endorsement or assignment of the Borrower where necessary), for application to
any of the Obligations and such Hedging Obligations, due or not due, and, until
so delivered, the same shall be held in trust by the Borrower as the property of
the holders of the Obligations and such Hedging Obligations. If the Borrower
fails to make any such endorsement or assignment to the Administrative Agent,
the Administrative Agent or any of its officers or employees are irrevocably
authorized to make the same. The Borrower agrees that until the Obligations
(other than the contingent indemnity obligations) and such Hedging Obligations
have been paid in full (in cash) and satisfied and all financing arrangements
pursuant to any Loan Document or Hedging Agreement among the Borrower and the
holders of the Obligations (and their affiliates) have been terminated, the
Borrower will not assign or transfer to any Person (other than the
Administrative Agent) any claim the Borrower has or may have against any
Subsidiary Guarantor.
ARTICLE XI: THE ADMINISTRATIVE AGENT
--------------------------
11.1 Appointment; Nature of Relationship. Bank One, NA, having its
---------------------------------------
principal office in Chicago, Illinois is appointed by the Lenders as the
Administrative Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Administrative Agent
agrees to act as such contractual representative upon the express conditions
contained in this Article XI. Notwithstanding the use of the defined term
-----------
"Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Holder
of Obligations by reason of this Agreement and that the Administrative
Agent is merely acting as the representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the
Administrative Agent (i) does not assume any fiduciary duties to any of the
Holders of Obligations, (ii) is a "representative" of the Holders of Obligations
within the meaning of "secured party" as defined in Section 9-102 of Revised
Article 9 of the Uniform Commercial Code of the State of Illinois and (iii) is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders, for itself and on behalf of its affiliates as Holders of
Obligations, agrees to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Holder of Obligations waives.
11.2 Powers. The Administrative Agent shall have and may exercise such
------
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
11.3 General Immunity. Neither the Administrative Agent nor any of its
-----------------
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen solely from the
gross negligence or willful misconduct of such Person.
11.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc. Neither
-------------------------------------------------------------
the Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article V, except receipt of items
---------
required to be delivered solely to the Administrative Agent; (iv) the existence
or possible existence of any Default or (v) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, representations or warranties herein or in
any of the other Loan Documents, for the perfection or priority of the Liens on
collateral, if any, or for the execution, effectiveness, genuineness, validity,
legality, enforceability, collectibility, or sufficiency of this Agreement or
any of the other Loan Documents or the transactions contemplated thereby, or for
the financial condition of any guarantor of any or all of the Obligations, the
Borrower or any of its Subsidiaries.
11.5 Action on Instructions of Lenders. The Administrative Agent shall in
-----------------------------------
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions signed
by the Required Lenders (or all of the Lenders in the event that and to the
extent that this Agreement expressly requires such), and such instructions and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders and on all owners of Loans and on all Holders of Obligations. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
11.6 Employment of Administrative Agents and Counsel. The Administrative
--------------------------------------------------
Agent may execute any of its duties as the Administrative Agent hereunder and
under any other Loan Document by or through employees, agents, and
attorney-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Administrative Agent
and the Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
11.7 Reliance on Documents; Counsel. The Administrative Agent shall be
---------------------------------
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
11.8 The Administrative Agent's Reimbursement and Indemnification. The
-----------------------------------------------------------------
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Pro Rata Shares (i) for any amounts not
reimbursed by the Borrower for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
--------
that no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have arisen solely from the gross negligence or willful
misconduct of the Administrative Agent.
11.9 Rights as a Lender. With respect to its Commitment and Loans made by
--------------------
it, the Administrative Agent shall have the same rights and powers hereunder and
under any other Loan Document as any Lender and may exercise the same as though
it were not the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Subsidiaries in which such Person
is not prohibited hereby from engaging with any other Person.
11.10 Lender Credit Decision. Each Lender acknowledges that it has,
------------------------
independently and without reliance upon the Administrative Agent, the Arrangers
or any other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arrangers or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
11.11 Successor Administrative Agent. The Administrative Agent may resign
--------------------------------
at any time by giving written notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint,
on behalf of the Borrower and the Lenders, a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty days after the
retiring Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. Notwithstanding anything herein to the
contrary, so long as no Default has occurred and is continuing, each such
successor Administrative Agent shall be subject to approval by the Borrower,
which approval shall not be unreasonably withheld. Such successor
Administrative Agent shall be a commercial bank having capital and retained
earnings of at least $500,000,000. Upon the acceptance of any appointment as
the Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article XI shall continue in effect for its benefit in
----------
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan Documents.
11.12 No Duties Imposed Upon Syndication Agent or Arrangers. None of
-------------------------------------------------------
the Persons identified on the cover page to this Agreement, the signature pages
to this Agreement or otherwise in this Agreement as a "Syndication Agent" or
"Arranger" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than if such Person is a Lender, those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Persons identified on the cover page to this Agreement, the signature pages to
this Agreement or otherwise in this Agreement as a "Syndication Agent" or
"Arranger" shall have or be deemed to have any fiduciary duty to or fiduciary
relationship with any Lender. In addition to the agreement set forth in Section
-------
11.10, each of the Lenders acknowledges that it has not relied, and will not
-----
rely, on any of the Persons so identified in deciding to enter into this
---
Agreement or in taking or not taking action hereunder.
---
ARTICLE XII: SETOFF; RATABLE PAYMENTS
--------------------------
12.1 Setoff. In addition to, and without limitation of, any rights of the
------
Lenders under applicable law, if any Default occurs and is continuing, any
indebtedness from any Lender to the Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
12.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
-----------------
payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4) in a greater proportion than that received by any
--------- --- ---
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
12.3 Application of Payments. Subject to the provisions of Section 9.2, the
----------------------- -----------
Administrative Agent shall, unless otherwise specified at the direction of the
Required Lenders which direction shall be consistent with the last sentence of
this Section 12.3, apply all payments and prepayments in respect of any
-------------
Obligations received after the occurrence and during the continuance of a
---
Default or Unmatured Default in the following order:
-
(A) first, to pay interest on and then principal of any portion of the Loans
which the Administrative Agent may have advanced on behalf of any Lender
for which the Administrative Agent has not then been reimbursed by such Lender
or the Borrower;
(B) second, to pay interest on and then principal of any advance made under
Section 10.3 for which the Administrative Agent has not then been paid by the
-------------
Borrower or reimbursed by the Lenders;
--
(C) third, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Administrative Agent;
(D) fourth, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders;
(E) fifth, to pay interest due in respect of Loans;
(F) sixth, to the ratable payment or prepayment of principal outstanding on
Loans and Hedging Obligations under Hedging Agreements in such order as the
Administrative Agent may determine in its sole discretion; and
(G) seventh, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrower, all principal payments in respect
of Loans shall be applied to the outstanding Loans first, to repay outstanding
Floating Rate Loans, and then to repay outstanding Eurodollar Rate Loans with
----
those Eurodollar Rate Loans which have earlier expiring Interest Periods being
repaid prior to those which have later expiring Interest Periods. The order of
priority set forth in this Section 12.3 and the related provisions of this
-------------
Agreement are set forth solely to determine the rights and priorities of the
Administrative Agent and the Lenders as among themselves. The order of priority
set forth in clauses (D) through (G) of this Section 12.3 may at any time and
----------- --- ------------
from time to time be changed by the Required Lenders without necessity of notice
to or consent of or approval by the Borrower, or any other Person. The order of
priority set forth in clauses (A) through (C) of this Section 12.3 may be
------------ --- ------------
changed only with the prior written consent of the Administrative Agent.
12.4 Relations Among Lenders.
-------------------------
(A) Except with respect to the exercise of set-off rights of any Lender in
accordance with Section 12.1, the proceeds of which are applied in accordance
-------------
with this Agreement, and except as set forth in the following sentence, each
Lender agrees that it will not take any action, nor institute any actions or
proceedings, against the Borrower or any other obligor hereunder or with respect
to any Loan Document, without the prior written consent of the Required
Lenders or, as may be provided in this Agreement or the other Loan Documents, at
the direction of the Administrative Agent.
(B) The Lenders are not partners or co-venturers, and no Lender shall be
liable for the acts or omissions of, or (except as otherwise set forth herein in
case of the Administrative Agent) authorized to act for, any other Lender. The
Administrative Agent shall have the exclusive right on behalf of the Lenders, at
the direction of the Required Lenders, to enforce on the payment of the
principal of and interest on any Loan after the date such principal or interest
has become due and payable pursuant to the terms of this Agreement.
12.5 Representations and Covenants Among Lenders. Each Lender represents
----------------------------------------------
and covenants for the benefit of all other Lenders and the Administrative Agent
that such Lender is not satisfying and shall not satisfy any of its obligations
pursuant to this Agreement with any assets considered for any purposes of ERISA
or Section 4975 of the Code to be assets of or on behalf of any "plan" as
defined in section 3(3) of ERISA or section 4975 of the Code, regardless of
whether subject to ERISA or Section 4975 of the Code.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-----------------------------------------------------
13.1 Successors and Assigns. The terms and provisions of the Loan Documents
----------------------
shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) without the
consent of all of the Lenders, the Borrower shall not have the right to assign
its rights or obligations under the Loan Documents, and any such assignment in
violation of this Section 13.1(i) shall be null and void, and (ii) any
----------------
assignment by any Lender must be made in compliance with Section 13.3 hereof.
------------
Notwithstanding clause (ii) of this Section 13.1 or Section 13.3, (i) any Lender
----------- ------------ ------------
may at any time, without the consent of the Borrower or the Administrative
Agent, assign all or any portion of its rights under this Agreement to a Federal
Reserve Bank and (ii) any Lender which is a fund or commingled investment
vehicle that invests in commercial loans in the ordinary course of its business
may at any time, without the consent of the Borrower or the Administrative
Agent, pledge or assign all or any part of its rights under this Agreement to a
trustee or other representative of holders of obligations owed or securities
issued by such Lender as collateral to secure such obligations or securities;
provided, however, that no such assignment or pledge shall release the
------ -------
transferor Lender from its obligations hereunder. The Administrative Agent may
------
treat each Lender as the owner of the Loans made by such Lender hereunder for
all purposes hereof unless and until such Lender complies with Section 13.3
------------
hereof in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of a Loan, Commitment or any other interest
of a lender under the Loan Documents agrees by acceptance thereof to be bound by
all the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of any Loan, shall be conclusive and binding
on any subsequent owner, transferee or assignee of such Loan.
13.2 Participations.
--------------
(A) Permitted Participants; Effect. Subject to the terms set forth in this
-------------------------------
Section 13.2, any Lender may, in the ordinary course of its business and in
-------------
accordance with applicable law, at any time sell to one or more banks or other
----
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Commitment of such Lender or any other interest of such Lender under
the Loan Documents. Notice of such participation to the Borrower and the
Administrative Agent shall be required prior to any participation becoming
effective with respect to a Participant which is not a Lender or an Affiliate
thereof. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of all Loans made by it for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be determined as if
such Lender had not sold such participating interests, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan Documents
except that, for purposes of Article IV hereof, the Participants shall be
-----------
entitled to the same rights as if they were Lenders.
(B) Voting Rights. Each Lender shall retain the sole right to approve,
--------------
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Commitment in which such Participant has an
interest which forgives principal, interest or fees or reduces the interest rate
or fees payable pursuant to the terms of this Agreement with respect to any such
Loan or Commitment, postpones any date fixed for any regularly-scheduled payment
of principal of, or interest or fees on, any such Loan or Commitment, releases
any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty, or
releases all or substantially all of the collateral, if any, securing any such
Loan.
(C) Benefit of Setoff. The Borrower agrees that each Participant shall be
-------------------
deemed to have the right of setoff provided in Section 12.1 hereof in respect to
------------
its participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender shall retain the
--------
right of setoff provided in Section 12.1 hereof with respect to the amount of
------------
participating interests sold to each Participant except to the extent such
Participant exercises its right of setoff. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided in
Section 12.1 hereof, agrees to share with each Lender, any amount received
-------------
pursuant to the exercise of its right of setoff, such amounts to be shared in
-----
accordance with Section 12.2 as if each Participant were a Lender.
-- -------------
13.3 Assignments.
-----------
(A) Permitted Assignments. Any Lender may, in the ordinary course of its
----------------------
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("PURCHASERS") all or a portion of its rights and
obligations under this Agreement (including, without limitation, its Commitment
and all Loans owing to it in accordance with the provisions of this Section
-------
13.3. Each assignment shall be of a constant, and not a varying, ratable
percentage of all of the assigning Lender's rights and obligations under this
Agreement. Such assignment shall be substantially in the form of Exhibit C
---------
hereto and shall not be permitted hereunder unless such assignment is either for
all of such Lender's rights and obligations under the Loan Documents or,
without the prior written consent of the Administrative Agent and (if no Default
or Unmatured Default has occurred or is continuing) the Borrower, involves loans
and commitments in an aggregate amount of at least $5,000,000 (which minimum
amount shall not apply to any assignment between Lenders, or to an affiliate of
any Lender). Other than with respect to any assignment to another Lender or an
affiliate or successor entity of such Lender, the consent of the Administrative
Agent, and, prior to the occurrence and continuance of a Default or Unmatured
Default, the Borrower (which consent, in each such case, shall not be
unreasonably withheld) shall be required prior to an assignment becoming
effective.
(B) Effect; Effective Date. Upon (i) delivery to the Administrative Agent
------------------------
of a notice of assignment, substantially in the form attached as Appendix I to
----------
Exhibit C hereto (a "NOTICE OF ASSIGNMENT"), together with any consent required
---------
by Section 13.3(A) hereof, and (ii) payment of a $3,500 fee by the assignee or
----------------
the assignor (as agreed) to the Administrative Agent for processing such
assignment (provided no such fee shall be required in connection with an
assignment by a Lender to an affiliate or successor entity of such Lender), such
assignment shall become effective on the effective date specified in such Notice
of Assignment. The Notice of Assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase
of the Commitment or Loans under the applicable Assignment Agreement constitute
for any purpose of ERISA or Section 4975 of the Code assets of any "plan" as
defined in Section 3(3) of ERISA or Section 4975 of the Code and that the rights
and interests of the Purchaser in and under the Loan Documents will not
constitute such "plan assets". On and after the effective date of such
assignment, such Purchaser, if not already a Lender, shall for all purposes be a
Lender party to this Agreement and any other Loan Documents executed by the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
-------
13.3(B), the transferor Lender, the Administrative Agent and the Borrower shall
-------
make appropriate arrangements so that, to the extent notes have been issued to
evidence any of the transferred Loans, replacement notes are issued to such
transferor Lender and new notes or, as appropriate, replacement notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
Commitment (or from and after the Funding Date, the outstanding principal
balance of such Lender's Loans), as adjusted pursuant to such assignment.
(C) The Register. The Administrative Agent shall maintain at its address
-------------
referred to in Section 14.1 a copy of each assignment delivered to and accepted
------------
by it pursuant to this Section 13.3 and a register (the "REGISTER") for the
------------
recordation of the names and addresses of the Lenders and the Commitment of or
principal amount of the Loans owing to, each Lender from time to time and
whether such Lender is an original Lender or the assignee of another Lender
pursuant to an assignment under this Section 13.3. The entries in the Register
------------
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower and each of its Subsidiaries, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
13.4 Confidentiality. Subject to Section 13.5, the Administrative Agent and
--------------- ------------
the Lenders and their respective representatives shall hold all nonpublic
information obtained pursuant to the requirements of this Agreement and
identified as such by the Borrower in accordance with such Person's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound commercial lending or investment practices and in
any event may make disclosure reasonably required by a prospective Transferee in
connection with the contemplated participation or assignment or as required or
requested by any Governmental Authority or any securities exchange or similar
self-regulatory organization or representative thereof or pursuant to a
regulatory examination or legal process, or to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor, and shall require any such Transferee to agree (and
require any of its Transferees to agree) to comply with this Section 13.4. In
------------
no event shall the Administrative Agent or any Lender be obligated or required
to return any materials furnished by the Borrower; provided, however, each
-------- -------
prospective Transferee shall be required to agree that if it does not become a
participant or assignee it shall return all materials furnished to it by or on
behalf of the Borrower in connection with this Agreement.
13.5 Dissemination of Information. The Borrower authorizes each Lender to
------------------------------
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the Borrower and its Subsidiaries; provided that prior to any such
--------
disclosure, such prospective Transferee shall agree to preserve in accordance
with Section 13.4 the confidentiality of any confidential information described
------------
therein.
ARTICLE XIV: NOTICES
-------
14.1 Giving Notice. Except as otherwise permitted by Section 2.13 with
-------------- ------------
respect to Borrowing/Election Notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Documents
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties.
Any notice, if mailed and properly addressed with postage prepaid, shall be
deemed given three (3) Business Days after mailed; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback
confirmed in the case of telexes); or, any notice, if transmitted by courier,
one (1) Business Day after deposit with a reputable overnight carrier services,
with all charges paid.
14.2 Change of Address. The Borrower, the Administrative Agent and any
-------------------
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XV: COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart.
[Remainder of This Page Intentionally Blank]
= =
Signature Page to
Bridge Term Loan Credit Agreement
Signature Page to
Bridge Term Loan Credit Agreement
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
ENERGIZER HOLDINGS, INC., as the Borrower
By:
Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President - Chief Financial Officer
Address:
000 Xxxxxxxxx Xxxxxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Attention:
Phone:
Fax:
E-Mail:
BANK ONE, NA (Main Office Chicago), as Administrative Agent and as a
Lender
By:
Name:
Title:
Address:
1 Bank Xxx Xxxxx
Xxxxx XX0-0000
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
E-Mail: xxxxxxx_xxxxxxxxxx@xxxxxxx.xxx
BANK OF AMERICA, N.A., as Syndication Agent and as a Lender
By:
Name: Xxxxxx Xxxxx Horos
Title: Vice President
Address:
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxx_xxxxx.xxxxx@xxxxxxxxxxxxx.xxx
3
EXECUTION COPY
AMENDMENT NO. 1
TO
364-DAY BRIDGE TERM LOAN CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO 364-DAY BRIDGE TERM LOAN CREDIT AGREEMENT (the
"AMENDMENT") is made as of January 24, 2003 by and among ENERGIZER HOLDINGS,
INC. (the "BORROWER"), the financial institutions listed on the signature pages
hereof (the "LENDERS") and BANK ONE, NA (having its principal office in Chicago,
Illinois) in its individual capacity as a Lender and in its capacity as
contractual representative (the "ADMINISTRATIVE AGENT") under that certain
364-Day Bridge Term Loan Credit Agreement dated as of January 17, 2003 by and
among the Borrower, the financial institutions from time to time party thereto,
the Administrative Agent and Bank of America, N.A., as "Syndication Agent" (the
"CREDIT AGREEMENT"). Defined terms used herein and not otherwise defined herein
shall have the meanings given to them in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties
to the Credit Agreement;
WHEREAS, the Borrower has requested an amendment to the Credit Agreement;
and
WHEREAS, the Borrower, the Lenders and the Administrative Agent have agreed
to amend the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
have agreed to the following amendments to the Credit Agreement:
1. AMENDMENTS TO THE CREDIT AGREEMENT. Effective as of the date of this
--------------------------------------
Amendment and subject to the satisfaction of the conditions precedent set forth
in Section 2 below, the Credit Agreement is hereby amended as follows:
----------
1.1. The definition of "Designated Acquisition Agreement" set forth in
---------------------------------
Section 1.1 of the Credit Agreement is hereby restated in its entirety as
---------
follows:
---
"DESIGNATED ACQUISITION AGREEMENT" means that certain Stock and Asset
----------------------------------
Purchase Agreement dated as of January 20, 2003 by and between the Borrower and
the Seller, including all schedules and exhibits thereto, as the same may be
amended, supplemented or otherwise modified from time to time.
1.2 The definition of "Termination Date" set forth in Section 1.1 of
---------------- -----------
the Credit Agreement is hereby amended to delete the reference to "April 1,
2003" contained therein and to substitute the words "August 1, 2003" therefor.
1.3 The first sentence of Section 2.1(a) of the Credit Agreement is hereby
--------------
amended to delete the reference to "April 1, 2003" contained therein and to
substitute the words "August 1, 2003" therefor.
1.4 Section 2.5(b) of the Credit Agreement is hereby amended to delete the
---------------
reference to "April 1, 2003" contained therein and to substitute the words
"August 1, 2003" therefor.
1.5 The lead-in language to Section 5.1 of the Credit Agreement is hereby
-----------
amended to delete the reference to "March 31, 2003" contained therein and to
substitute the words "July 31, 2003" therefor.
1.6 Sections 7.1(A)(iii)(b), 7.2(K)(a) and 7.3(F)(iii) of the Credit
------------------------ -------- -----------
Agreement are each hereby amended to delete the reference to "Section 7.3(R)"
--------------
contained in each such Section and to substitute, in each case, a reference to
"Section 7.3(Q)" therefor.
---------------
2. CONDITIONS OF EFFECTIVENESS. The provisions of Section 1 of this
----------------------------- ----------
Amendment shall not become effective unless:
(a) this Amendment shall have been duly executed by the Borrower, the
Administrative Agent and the Required Lenders; and
(b) the Administrative Agent shall have received a Reaffirmation in the form
of Exhibit A attached hereto executed by each of Energizer International, Inc.,
---------
a Delaware corporation, and Eveready Battery Company, Inc., a Delaware
corporation.
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower hereby
----------------------------------------------
represents and warrants as follows:
(a) The Borrower has the legal power and authority to execute and deliver
this Amendment and the officers of the Borrower executing this Amendment have
been duly authorized to execute and deliver the same and bind the Borrower with
respect to the provisions hereof.
(b) This Amendment and the Credit Agreement, as previously executed and as
amended hereby, constitute legal, valid and binding obligations of the Borrower
and are enforceable against the Borrower in accordance with their terms.
(c) Upon the effectiveness of this Amendment and after giving effect hereto,
(i) the Borrower hereby reaffirms all representations and warranties made in the
Credit Agreement, as amended hereby, and agrees that all such representations
and warranties are true and correct as of the effective date of this Amendment
(other than representations and warranties that are expressly made as of a
specific date, which representations and warranties shall be true and correct as
of such date) and (ii) no Default or Unmatured Default has occurred and is
continuing.
4. REFERENCE TO THE EFFECT ON THE CREDIT AGREEMENT.
------------------------------------------------------
(a) Upon the effectiveness of Section 1 hereof, on and after the date
----------
hereof, each reference in the Credit Agreement (including any reference therein
to "this Credit Agreement," "this Agreement," "hereunder," "hereof," "herein" or
words of like import referring thereto) or in any other Loan Document shall mean
and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all other
documents, instruments and agreements executed and/or delivered in connection
therewith, shall remain in full force and effect, and are hereby ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Administrative Agent or the Lenders, nor constitute a waiver of
any provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ., BUT
OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS) OF THE STATE OF
ILLINOIS.
6. HEADINGS. Section headings in this Amendment are included herein for
--------
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
7. COUNTERPARTS; FACSIMILE EFFECTIVENESS. This Amendment may be executed
--------------------------------------
by one or more of the parties to this Amendment on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A facsimile signature page hereto sent
to the Administrative Agent or the Administrative Agent's counsel shall be
effective as a counterpart signature provided each party executing such a
facsimile counterpart agrees to deliver originals to the Administrative Agent
thereof.
Signature Page to Amendment No. 1 to
364-Day Bridge Term Loan Credit Agreement
in favor of Energizer Holdings Inc.
Signature Page to Amendment No. 1 to
364-Day Bridge Term Loan Credit Agreement
in favor of Energizer Holdings Inc.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
ENERGIZER HOLDINGS, INC., as the Borrower
By:
Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President - Chief Financial Officer
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Administrative Agent and as a Lender
By:
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Director, Capital Markets
BANK OF AMERICA, N.A.,
as a Lender
By:
Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President
Reaffirmation of 364-Day Bridge Term Loan Guaranty
EXHIBIT A
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy of Amendment
No. 1 dated as of January 24, 2003 (the "AMENDMENT") to the 364-Day Bridge Term
Loan Credit Agreement dated as of January 17, 2003 by and among ENERGIZER
HOLDINGS, INC. (the "BORROWER"), the financial institutions from time to time
party thereto (the "LENDERS") and BANK ONE, NA (having its principal office in
Chicago, Illinois), in its individual capacity as a Lender and in its capacity
as contractual representative (the "ADMINISTRATIVE AGENT") (as heretofore
amended and as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"). Capitalized terms used in
this Reaffirmation and not defined herein shall have the meanings given to them
in the Credit Agreement.
Without in any way establishing a course of dealing by the Administrative Agent
or any Lender, each of the undersigned reaffirms the terms and conditions of the
Subsidiary Guaranty and any other Loan Document executed by it and acknowledges
and agrees that such Subsidiary Guaranty and each and every such Loan Document
executed by the undersigned in connection with the Credit Agreement remains in
full force and effect and is hereby reaffirmed, ratified and confirmed. All
references to the Credit Agreement contained in the above-referenced documents
shall be a reference to the Credit Agreement as so modified by the Amendment and
as the same has previously been and may from time to time hereafter be amended,
restated, supplemented or otherwise modified.
Dated: January 24, 2003
ENERGIZER INTERNATIONAL, INC.
By: __________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President Chief Financial Officer
EVEREADY BATTERY COMPANY, INC.
By: __________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President Chief Financial Officer
